Take care with patient e-mail policies

Electronic communication can enhance doctor-patient relationships, but already familiar legal traps lurk in the new revolution: privacy, malpractice and accuracy of information.

By Tanya Albert, amednews staff. Jan. 22, 2001.

As e-mail, handheld computers and other technology become more commonplace in the doctor's office, so does the potential for lawsuits.

Health care lawyers are quick to point out that new forms of electronic communication provide more opportunity to do good for patients than bad. And, they say, the new forms of communication are a great way to make physicians' jobs more efficient.

Smart e-mailing

Still, with recent headlines announcing how wonderful the new technology is and how good the coming technology will be, doctors need to be aware of potential pitfalls.

There don't appear to be any active lawsuits accusing physicians of using e-mail or other electronic communication improperly. There are, though, three areas that have the most potential for future litigation and that already are well-known for triggering lawsuits: accuracy of the information given to a patient, malpractice, and privacy and confidentiality.

But as technology continues to improve and, in turn, becomes a routine part of a physician's practice, potential lawsuits likely will provide new twists to old themes. Those three areas are vulnerable because exchanging information is faster and easier through e-mail than it was through letters or over the telephone.

"It will be very interesting to see technology interact with the heavily regulated field of medicine," said Douglas Hastings, president-elect of the American Health Lawyers Assn. and a senior member of the health law practice at Epstein, Becker & Green's Washington, D.C., office. "That set of entrepreneurs has not yet fully engaged with our complicated health care system."

But litigation doesn't have to be the force that determines how the electronic age of medicine evolves, health care lawyers say. Rules and standards set now -- early in its evolution -- could go a long way in preventing suits that shape how practices work in the electronic age, Hastings said.

In June 2000, the AMA adopted guidelines on how physicians should communicate with patients in e-mails. The Journal of American Medical Informatics Assn. printed guidelines in 1998. And earlier this month, eRisk Working Group for Healthcare, a collaboration of leading medical malpractice carriers and medical societies, released guidelines.

Government gets in the act

Final regulations on the Health Insurance Portability and Accountability Act of 1996 also will dictate to some extent how physicians employ emerging technologies in their practices. HIPAA mandated regulations that govern privacy, security and administrative simplification standards for health care information.

Privacy was an issue long before emerging technology gave people a new way to try to obtain information. For example, someone could photocopy a medical record that had been left out on a desk. And as technology changes and even as security measures improve, privacy will continue to be a potential pitfall.

"If somebody really wants to know the contents of a file, they can probably get it," said Elliott Oppenheim, MD, the CEO and president of coMEDco Inc., a national medical-legal consulting company. "There are people who make a living figuring out how to circumvent the system."

Physicians need to make sure their online communication is secure. But one of the bigger issues, he said, will be that physicians need to be cognizant of the tone of their e-mail.

"The main liability issue is giving offhanded, knee-jerk advice without being properly prepared," Dr. Oppenheim said. "That is potentially a very serious problem."

Advice from Todd Dicus, the American Academy of Family Physicians' general counsel: "Doctors need to come up with a balance that they are comfortable with."

Better than phone calls?

California family practice physician Joseph Scherger, MD, has done just that. One of his biggest safeguards when it comes to e-mail is having an established relationship with the patient. About two-thirds of his patient communication is done through e-mail, including following up on chronic problems.

"E-mail is like phone calls in a legal sense," said Dr. Scherger, who chairs the Dept. of Family Medicine at University of California at Irvine. "I have been using e-mail to communicate with patients for three years, and not one of them has expressed a concern. ... You just want to have an understanding of it."

In some ways, e-mail is better than the phone for Dr. Scherger. He is able to copy all of the e-mails and insert them into patient files, something he can't do with a phone call. When it comes to privacy and confidentiality, he said, e-mail is in some ways no different than the paper files doctors are responsible for in their offices.

Physicians need to do what they can to ensure the privacy and security of electronic files, Hastings said. It will be better if the courts don't shape electronic communication in the medical field. Instead, it would be more productive for good guidelines established early to set the tone.

"It is possible that sensible and far-sighted ... public-sector regulation could go a long way," Hastings said. "Bringing it to the courts should be a last resort."

ADDITIONAL INFORMATION:

Smart e-mailing

Tips to avoid legal problems that could arise in using electronic communication:

Consider getting a patient's informed consent before exchanging e-mail. The written forms should include instructions such as when and how e-mail should escalate to a phone call or office visit.
Use password-protected screen savers.
Never forward patient-identifiable information to a third party without the patient's express permission.
Never use the patient's e-mail address in a marketing scheme.
Don't share e-mail accounts used professionally with family members.
Use encryption when available and practical.
Double-check all "to" fields before sending the message.
Commit policy decisions to writing and electronic form.
Save e-mail communication; put it into long-term storage or print it out on paper.

Source: Journal of the American Medical Informatics Assn.