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NEWSLETTER
 
medical humanities newsletter
The Bioethics Center, University Health Systems of Eastern Carolina
Department of Medical Humanities, The Brody School of Medicine at East Carolina University
 
 
 
Ethical and Legal Implications of E-Mail Correspondence Between Physicians and Patients
Kenneth A. De Ville, Ph.D., J.D.

The technological infrastructure is now nearly sufficient to allow widespread use of electronic mail (e-mail) communication in the medical arena. E-mail between physicians and patients holds much promise and clearly has the potential to enhance the medical professional relationship. E-mail has the advantage of speed and convenience for both parties, eliminates so-called “phone tag” and, at the same time, allows correspondents to compose careful and structured responses. It is self-documenting. Used in conjunction with traditional office visits, e-mail might allow patients and physicians to augment information or advice that was overlooked during a previous office consultation. Despite this promise, e-mail communication in the medical environment raises important questions of legal, ethical, and professional propriety. With careful planning and clear-headed practices, however, physicians should be able to incorporate electronic communication into their practices without significant additional legal or ethical peril [1].

Electronic Communication with Current Patients
E-mail between physician and patient is such a new phenomenon that any observations pertaining to the practice are, to a certain degree, speculative. Some guidance, however, is available. Many physicians, understandably, are concerned about the potential legal ramifications of e-mail with patients. E-mail communications within an already established physician-patient relationship present a relatively clear case legally. If the physician provides negligently erroneous advice over the electronic means, she may be held liable for the damages that such a breach in the standard of care causes, just as she would have if she had provided the same advice in person.

However, a physician’s duty might also include a legal and ethical obligation to properly orchestrate those electronic interactions, to inform the patient of the limitations of the medium, and to establish staff policies to ensure that patient well-being is protected. In most circumstances, the use of physician-patient e-mail correspondence should be limited to cases where there is a previously existing professional relationship and the communication relates to a simple and clear, non-urgent issue that does not involve sensitive or confidential information. For example, it may be appropriate to respond to patient questions regarding diet or the self-monitoring, for instance, of blood pressure and glucose levels. E-mail may be an effective way to respond to prescription renewal and appointment requests, to provide appointment and other reminders, to conduct other forms of general patient education, and to follow-up and elaborate on information and explanations provided initially in person. In contrast, e-mail would ordinarily not be an appropriate means of conveying complicated, urgent, or sensitive medical information. For example, face-to-face dialogue is more appropriate both to enhance understanding and for the patient’s feelings in a range of cases including telling patients bad news, complicated test results, or a new diagnosis.

Confidentiality concerns should proscribe the use of e-mail for sensitive issues like mental health, substance abuse, human immunodeficiency virus status, or medical information regarding legal claims involving the patient [1, 2].

It is equally important that patients with whom the physician chooses to communicate understand explicitly both the authorized uses of e-mail within the practice and the limitations of electronic communication in general. It is possible that the physician may be willing to communicate electronically with some patients, but not others, depending on the patient’s comfort level with e-mail, and the physician’s confidence in the patient’s ability to understand and abide by the intrinsic limitations of the medium. A consensus is developing in the literature that suggests that physicians and patients who communicate electronically should engage in an informed consent process through which the patient is informed of the potential risks and benefits of clinical e-mail communications. For clinical, ethical and legal reasons, a thoroughgoing patient education program should be in place before a physician or practice begins to correspond with patients on medical matters. [2]

Finally, medical practices in which physicians have chosen to communicate with patients electronically should establish written office policies that take account of the problematic dynamics of e-mail communication in medicine. These policies have administrative, ethical and legal benefits and should address the acceptable content of e-mail queries and answers, the triage and protocols that will frame how physicians and staff will respond to such questions, expected response time to messages, the identity of the staff that will read incoming messages, document-retention practices, and security measures taken to protect the confidentiality of the electronic correspondence. Training, monitoring, and disciplinary policies should ensure that all staff abide by the office policies on e-mail related issues.

A group of scholars and clinicians working with the American Medical Informatics Association (AMIA) has produced a set of guidelines for patient-physician e-mail communication. These guidelines have no technical legal significance, but have been cited with approval by leading writers in the field and represent a working summation of prophylactic measures to protect both patient and physician. It is possible, though, that the guidelines might someday provide a framework for deciding the nature of a physician’s duties, and therefore might be viewed as a developing standard of care. Although the AMIA guidelines do not necessarily provide an all-inclusive and final articulation of physicians’ duties in regard to electronic communication, they are one of the best available guides for those clinicians who wish to provide their patients this option. [3]

Physicians who communicate with patients in different states should be aware of the relevant jurisdiction’s licensure laws, which remain somewhat unsettled and diverse from state-to-state. Failure to abide by or appropriately interpret state licensure laws, can, of course, lead to charges of practicing medicine without a license as well as the possibility that the relevant malpractice insurance policy may not cover liability that is incurred as a result of practice in a jurisdiction not identified in the insurance contract. Before expanding clinical use of e-mail, physicians should seek qualified legal assistance in determining whether they are practicing legally and whether their insurance contracts will protect them in the case of an adverse event.

Communication with Potential Patients
E-mail between physicians and persons who are not officially their patients raises more complicated questions. It is clear that individuals currently use the Internet to request information from physicians with whom they do not have a professional relationship. Many patients already have a physician and are seeking a second opinion or are uncertain or dissatisfied by their current care. Some such inquiries are of a general nature, but some, perhaps many, cannot be properly resolved without direct patient contact. In one study, researchers sent fictitious e-mail messages to physicians to gauge their responses to an individual describing a medical condition that appeared to require immediate medical attention. Fifty percent of the physicians did not respond to the inquiry; thirty percent of physicians responded, but refused to give advice without having examined the patient. Significantly though, nearly two thirds of the nineteen percent that did respond provided some manner of medical advice, including explicit treatment recommendations. [4]

It may run counter to many physicians’ moral and professional intuitions to provide no reply to an individual who is requesting aid for what may be a serious medical condition. But providing, or appearing to provide, medical advice may represent a serious professional and moral lapse, as well as a legal risk. There are practical, ethical and legal implications to providing even limited information in response to unsolicited e-mails from non-patients. Practically speaking, answering unsolicited e-mail from nonpatients on an ad hoc basis could become very time consuming. Moreover, once one commits to answering such inquiries, it is important to establish some method for deciding how to respond to various requests. Although one may provide medical “information” over e-mail to patients one has never examined, this is a highly uncertain and precarious practice. The varying use of language between physicians and patients with differing perspectives may lead one party to consider a particular message “information,” whereas another party simultaneously considers it “advice.” Lay persons undoubtedly vary greatly in their ability to describe their symptoms in a narrative form. In addition, the physician would necessarily be more prone to error given that he or she is working without the traditional and expected diagnostic tools of the profession, i.e., history, physical examination, and other appropriate diagnostic modalities.

The legal implications of answering unsolicited e-mail from non-patients with specific advice are troubling. Obviously, if a physician provides non-negligent advice or information and the individual requesting the advice does not suffer an injury, there is no legal risk. But that will not always be the case given the opportunities for mistake and misunderstanding and the reality that not all patients will enjoy full and unambiguous recoveries even under the best of circumstances.

It is true that a physician cannot be held legally liable unless it is shown that a doctor-patient relationship, and hence a professional duty, exists. But the existence of a doctor-patient relationship and corresponding duty can also be “implied” depending on the facts of the specific case. In the case of unsolicited e-mail communications, a plaintiff would have to show that the physician received specific information regarding a specific patient and that the physician knew, or should have known, that the information pertained to a specific patient. In addition, a plaintiff would probably have to prove that the physician intended to provide a diagnosis, treatment information or recommendation with the knowledge or reasonable expectation that the reader of the message intended to rely on that information. In the event that a plaintiff can establish all these issues, a viable claim of a doctor-patient relationship might exist, even where no payment is received or appointment made. A judge or jury would consider whether the totality of the circumstances showed that a doctor-patient relationship existed between the two correspondents.

A physician could include a disclaimer with all answers to unsolicited inquires. Such a disclaimer might contain language to make it clear to the recipient that the physician is providing only general medical information and not patient-specific advice and that no doctor-patient relationship is intended. But such a disclaimer may have uncertain value. If a physician includes a disclaimer but then provides what might be construed as medical advice, then the prophylactic value of the disclaimer is insecure. Therefore, while much e-mail communication between physicians and non-patients seeking information and/or advice may be harmless and even beneficial, individualized responses to e-mail from non-patients is unwise and should not be pursued.

Still, it may not be advisable for physicians to merely discard unsolicited requests for medical advice providing no response whatsoever. Suppose a significant portion of the medical community responds to unsolicited inquiries with some regularity. The public may gradually grow to expect some response from an e-mail inquiry and some individuals may delay their visit to a “flesh and blood physician” until they receive advice from the unseen physician, perhaps aggravating a condition that demands prompt attention. Thus, the profession as a whole has an interest and perhaps a public duty in assuring that the public does not come to expect responses to unsolicited medical inquiries. Physicians who do not respond to unsolicited inquiries in any manner may be overlooking an important opportunity for public education. A standard boilerplate response to every unsolicited e-mail request sent in a timely fashion could make the physician’s position clear, encourage the patient to seek medical attention, and steer individuals to the appropriate channels. Such a response to unsolicited e-mail inquiries from non-patients could declare that the physician is offering neither information nor advice and that it is perilous to seek medical advice in this manner. It also advises the correspondent to be wary of other physicians who may be more willing to provide medical information or advice without traditional and appropriate medical evaluations.

REFERENCES

1. Ferguson, T. “Digital Doctoring—Opportunities and Challenges in Electronic Patient-Physician Communication,” Journal of the American Medical Association 1998; 280: 1361-1362.

2. Spielberg, A. “On Call and Online: Sociohistorical, Legal and Ethical Implications of E-mail for the Patient-Physician Relationship,” Journal of the American Medical Association 1998; 280: 1353-1359.

3. Kane, B. and Sands, D. “Guidelines for the Clinical Use of Electronic Mail with Patients,” Journal of the American Informatics Association 1998; 5: 104-111.

4. Eysenbach, G. and Diepgen, T. “Responses to Unsolicited Patient E-mail Requests for Medical Advice on the World Wide Web,” Journal of the American Medical Association 1998; 280: 1333- 1335.