How to E-mail Patients Without Worrying About Liability
By Reni Gertner
As more and more doctors use e-mail to communicate with their
patients, their lawyers are jumping in to help them establish policies
and procedures to avoid having the practice land them in legal hot
water. From concerns about being sued for medical malpractice for
missing key illness details to fears of breaching the confidentiality of
patients’ electronic health information, using e-mail to
communicate with patients without following proper guidelines could
become a physician’s legal nightmare.
However, by establishing clear procedures, doctors can communicate
with patients electronically while minimizing the risk of being sued.
“If the medical practice is saying this is something they want to
do to make their business be more user-friendly, the goal should be to
facilitate that while making sure patients’ expectations are
appropriately set,” says Boston attorney David Szabo, co-chair of
the healthcare group at Nutter McClennen & Fish. Lancaster, Pa.,
attorney Jim Saxton, who practices at Stevens & Lee, agrees.
“It’s here,” says Saxton, who represents medical
professionals and hospitals and has written books about proactive risk
management. “I don’t think we can afford to say,
‘There might be liability exposure, so we’re not going to do
it.’”
In fact, some experts contend that using e-mail may even help doctors
reduce the risk of being sued. “Used wisely and well e-mail can
reduce your malpractice liability,” asserts Dr. Daniel Sands, an
internist at Beth Israel Deaconess Hospital in Boston and the Senior
Medical Informatics Director of the Internet Business Solutions Group at
Cisco Systems. Sands believes that using e-mail can lower the risk of
litigation by “reducing barriers to doctor-patient
communication” allowing “self-documenting” of
physician-patient interactions. Approximately 10 percent of med-mal
lawsuits won by patients stem from the doctor’s lack of
documentation in the record, he notes.
Balancing Risks and Benefits
Attorneys say that physicians need to pay attention to both federal
and state law in order to reduce their legal risks when communicating
with patients by e-mail. From a medical malpractice standpoint, one of
the biggest fears is being sued under state law for missing a symptom or
diagnosis based on e-mail interactions – or missing an urgent
e-mail message altogether.
Another major area of concern is complying with the patient privacy
and health information security requirements of HIPAA, the federal
Health Insurance Portability and Accountability Act. Under the
Act’s privacy rules, only a patient or the federal government can
“require” disclosure of the patient’s protected health
information. The patient can also request the format in which he or she
would like the information to be disclosed, including in electronic
form. The health care provider must then produce the information in the
requested format, as long as it is “readily producible.” The
HIPAA security rule, which covers electronic health information, states
that the protection of this information while in transit is an
“addressable” concern that a covered provider should deal
with based on its own risk analysis.
According to Sands, “HIPAA suggests it’s a good idea to
encrypt communications on the Internet,” but gives providers
leeway on whether to do so and how to go about it. The rules an entity
follows might differ based on who is receiving the information and how
it is being sent. One key aspect of complying with HIPAA, says Atlanta
attorney Barry Herrin, is to document your analysis of the risks and
benefits and explain any security choices you make. Essentially, you
have to “show your work,” says Herrin, who specializes in
HIPAA concerns and health care compliance at Smith Moore. These privacy,
confidentiality and security concerns can also be an issue under state
laws on privacy and medical records. But as long as physicians and their
lawyers take these issues into account, email interaction with patients
could reduce liability by increasing communication – which has
been shown in some studies to cut the number of med-mal suits.
E-mail is a convenient way for “patients to say, ‘Can you
explain again exactly what I am supposed to be doing?’” says
Saliha Khaja Greff, who practices health law with Caplan and Earnest in
Boulder, Colo. Sands says he frequently uses e-mail in this way, and it
tends to improve patient satisfaction and outcomes, both of which reduce
litigation. “If patients have a question after I’ve hung up
the phone with them, they are not going to try to call me back,”
he said. “But in e-mail, I routinely send a patient a message with
links to supplementary information, which ultimately leads to better
outcomes.”
Dr. Ann Loudermilk, an emergency physician in Boston, says she has
used e-mail as a patient in exactly that way. “It’s such an
easy way to get a hold of your doctor,” she says.
And from a risk management perspective, a major plus of e-mail is that
it “creates an automatic paper trail,” notes Greff.
MMLR
This article was originally published in the Summer 2006 issue of
Massachusetts Medical Law Report.
Questions or comments can be directed to the writer at: reni.gertner@mamedicallaw.com
Next: Doctor-Patient
E-mail in Practice: Policies and Procedures
|
