Question: A doctor hopes to use his Internet skills to reach out to patients and grow his practice. He is aware of potential legal risks, but plans to institute appropriate safeguards. Which of the following statements are most accurate?
A. Saving and systematically filing e-mail messages should suffice to comply with privacy requirements.
B. Online contacts, without more, are unlikely to constitute a doctor-patient relationship, so negligence issues may not arise.
C. If you do not advise or schedule procedures online, there will be no allegations of failure to obtain informed consent.
D. Creating a for-profit Web site for general medical advice is fine so long as you shield it with a disclaimer.
E. All are incorrect.
Answer: E. In the medical context, Internet liability can be far-ranging, and what seems like prudent risk management may prove inadequate. All of the above statements are only partially correct; importantly, they may lull the practitioner into complacence and place him or her in peril for a malpractice claim. Here are some relevant terms to consider:
Medical Negligence
Legal duty is a prerequisite to a successful negligence lawsuit, so this determination is critical to the plaintiff’s case. Although not the typical office or hospital patient, a plaintiff may argue successfully that a professional doctor-patient relationship had nonetheless been formed in cyberspace. It is likely that such a relationship will be found in some circumstances. The court is likely to ask whether the doctor saw the patient or the records, or knows the patient’s name, whether there was payment and an acceptance of a request for an appointment, and whether there was ever a physical exam. The more ‘yes’ answers to these questions, the more likely the court will find the existence of a duty. If online interactions are held to offer more information-rich interaction than would the telephone, as is likely, doctors may be deemed to have constructively formed a relationship with their cyber patients, even if there had been no physical contact or real-world interaction.
Courts have ruled in favor of plaintiffs despite the absence of face-to-face interaction with a physician. In one case, a doctor speaking to a patient from the emergency department was deemed to have formed a doctor-patient relationship, and in another, an on-call neurologist’s telephone advice to the treating doctor likewise raised the issue of legal duty. The state of Hawaii recently permitted telehealth services to be reimbursable, notwithstanding the absence of face-to-face contact [HRS §431:10A-116.3(a)]. With this law, an online encounter is likely to translate into a professional relationship – with corresponding legal duty of due care.
Injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Disclaimers are regularly posted by the online doctor-adviser-consultant who hopes to avoid liability. Whether this will withstand legal scrutiny is doubtful, as courts may well find that a doctor-patient relationship had indeed been formed, especially where there is a profit motive. Some providers have chosen to produce and publish to their own Web sites. Patients go to the Internet for clinical information, and some are asking their physicians for guidance. Doctors are either providing this information on their own or directing their patients elsewhere for it. In both situations, issues arise regarding the content source, and responsibility for, and frequency of, updates. There are also potential risks of conflict of interests associated with delivery of advertising or sponsorship along with the clinical information.
Clinicians who refer their patients to online pharmacies, or agree to do so upon their request, must be aware of additional risks. The National Association of Boards of Pharmacy provides a Verified Internet Pharmacy Practice Sites (VIPPS) program that certifies pharmacies as being in compliance with standards that include critical on-site inspection and review. Such Internet pharmacies will feature a seal of approval on their home page.