by F. “Rick” Evans, Jr., JD
Editor’s note: This article focuses on communication between patients and physicians. It’s not about communication with other providers, such as nurses or other physicians. It is about telemedicine, which includes a myriad of legal regulations to webside (not bedside) manner and telehealth physical exams.
This article is not about evolving technologies such as a version of Google Glass allowing bedside providers to be the eyes and ears of a distant physician. And finally, this article does not address the legal mandates for patient care portals. Instead, we’re focusing exclusively on a physician’s direct, one-on-one communication with a patient in the digital age.
Overheard in a physicians’ lounge at a local hospital . . .
“I’m overworked as it is without this new software taking even more of my time. I need down time. I can’t be available 24/7. I can’t bill for it. Besides, what malpractice risks do I face if I use it?”
These questions are often posed when the subject of patient contact by email or text comes up. But they could also be heard when telephones began widespread acceptance in the early 1900s. Or in 1964 when Motorola introduced “Pageboy” as a physician-based pager system. After all, the phone meant patients could actually call their physician without having to be seen or compensated. The pager put every physician on a 24/7 tether, from which there was little escape.
Physicians today must continually adapt to technology. There is really no choice. Can you imagine how a practice would fare if, back in 1975, the physician had no phone or pager service? By the same token, physicians must embrace today’s technology or risk being left behind.
With so many scoring matrixes by which to evaluate your performance (such as HCAHPS), you must remain current. Purely from a competitive standpoint, patients will migrate to your up-to-date competitors if you aren’t. And, new telecommunications tools are clearly the wave of the future, now that Medicare and some insurers are rolling out “virtual care codes” to provide reimbursement for telehealth communications.
Patient expectations are always important and your patients want you to offer digitally- based care. The Texas Medical Association cites a Harris survey showing that 90% of patients want to communicate with their physician on line. That was in 2002. Presumably the number is closer to 100% today. Patients want to schedule appointments, view records, refill prescriptions and, of course, get treatment without going to your office. If that’s what they want — and if you’ll be compensated for it — why not do it?
Well, with technology comes legal issues and those issues cannot be ignored. So, let’s begin.
We begin by acknowledging that good communication is vital to good care, whether that communication is at the exam table or on Skype or Google Duo. Studies have confirmed that good communication is associated with patient satisfaction, better decision making by both patient and physician, better outcomes, more compliant patients, and so much more. After all, “The patient will never care how much you know, until they know how much you care,” says orthopedic surgeon Terry Canale.
From a legal standpoint, good communication clearly leads to fewer claims against physicians. So, how do you integrate new communication tools in your practice and stay legally secure? Consider the following issues.
- Apple recently released a new smartwatch with an FDA-approved EKG. What do you do if your patient sends you a screen shot of it with a potentially significant arrythmia? What are you supposed to do with a data upload sent by a patient using Apple’s CareKit app?
- How do you handle call coverage? Is it sufficient to automatically forward your emails and texts to the person on call for you?
- What about patients who would rather email you than come to the office? Can you require them to come in?
- What do you do about less tech-savvy patients who may not work well with a digitally-based medical practice?
- How do you overcome the lack of face-to-face contact and non-verbal communication to avoid misunderstandings?
- Do you have a back-up plan if your Internet service goes down?
- How do you know if it really is the patient communicating with you rather than the patient’s spouse, parent, or child?
- What if you send confidential information to the wrong email address?
- What if patients use Google translate to translate your medical advice into their native language and mistranslations occur?
- What if your spam filter blocks an important email from your patient or vice versa?
It is absolutely essential to understand that despite the advances in telecommunication tools, the law has changed very little.
There has always been a legal mandate to keep patient information confidential. It made no difference whether the information came through your pager or an email. The duty to treat requires a physician to follow the standard of care, whether that care is provided on the phone or through video conference.
Just as a physician in 1980 could not ignore an after-hours page from a call service, that same physician cannot ignore patient outreach through the patient portal. The law still requires the same conduct and the same end result regardless of where or how the care is delivered.
The law makes little distinction between advising the patient at the hospital bedside versus advising a patient over the Internet. Even the AMA Code of Medical Ethics Opinion 2.3.1 makes it clear that the duties of physicians are the same whether contact is in person or via electronic communications.
A physician I represented 20 years ago was sued for allegedly not responding to phone calls from a nurse about a patient’s increasing stridor. The patient’s condition was due to epiglottitis, which ultimately occluded the airway and caused the patient’s death.
That physician could be on the same “legal hook” today, if the communication had been by text message sent to his smart phone. The mechanism of communication may have changed, but the legal standard has not.
