There are more and more physicians lately working to bring their services to other physicians, patients, facility directors and others beyond the conventional ‘trading areas’.
And, the challenge is that the malpractice insurance carriers providing coverage to physicians require that the doctor establish a proper physician to patient relationship. This relationship is usually established by a face to face, in person history and physician and proper examination of the records and any pertinent drug interactions, conflicts or regimens.
Once that relationship has been established, then the physicians are a bit more free to communicate with telemedicine or the internet than if they just start the relationship that way.
This is not to say that physicians cannot interact with the public using the internet,
It is just a fine line, the doctor should not establish the relationship only online. Online allows for disseminating ideas and valuable information of medical science, treatment histories, practice profiles that are new, effective and innovative. The concern is; the physician issuing, supplying the information is open to any number of readers, any number of people who are relying on their information.
Although there has to be a duty of care in order to establish a cause of action, that doesn’t mean that there aren’t complications.
There are some companies that are comfortable insuring the internet medical model. We have had success from radiology to dermatology to physician to physician consults insuring these different models. Generally, the state from which the information originates is where the lawsuit will be presented. And, if the insurance company is licensed in all states, then there is a greater chance that a policy can be written to cover the internet risk.
If the physician has a controlled ‘trading area’, and first establishes the patient relationship, then The Doctors’ Company can provide this coverage; if there is a more far reaching population receiving the information, accessing the web based medical site, then one of these national specialty carriers is a better fit.
Internet and telemedicine are becoming more prevalent in today’s medical landscape, providing more and more services to people who might not otherwise have access.
This information taken from Internal Medicine News might help physicians and patients understand the risk.
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:
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.
Still, what we find at The Doctors’ Insurance Agency is that we must carefully analyze and understand each practice risk before referring any physician’s internet based practice application to an insurer. We believe that we’re on top of the changing technology and studying the insurance solutions so that the insurance portion is not going to stop your development and expansion of your practice.