On a recent rerun of the 1960s TV series, “The Addams Family,” Thing, the disembodied hand that lived without a body, came down with a cold. So Morticia Addams contacted a doctor who agreed to see Thing during a house call. While the need for convenient access to a physician has not changed in 50 years, technology is offering new solutions to fill the need for patient/physician interaction that range from e-mail to text messaging to video chat, offering both promises and pitfalls. In this article we will explore some of the emerging liability issues that these new forms of patient evaluation present.
Today, there are essentially three types of interactions between patients and physicians: in office/hospital visits, telephone conferences, and electronic communications. The first two interactions have been long practiced and physicians have a good sense of the parameters of their use. Electronic communication is new and has become popular within the past few years. Clinicians often do not have a well-honed sense of the boundaries of interaction with these new mediums and, unfortunately, electronic communications have created another avenue for physician liability.
When a physician sees a patient in person, the physician assesses the patient’s subjective complaints and objectively evaluates the patient. While it has been said that 90% of the diagnosis is arrived at through the taking of a careful history, I think we would all agree that a physical exam is an important part of a complete evaluation, and, depending upon the presenting problem and the differential diagnosis, it may be an essential part of the evaluation. When a physician interacts with a patient over the phone, that physician’s ability to evaluate the patient’s complaints through physical contact is removed, but the physician still has the ability to hear the patient’s voice and engage the patient. Voice inflections – a slight tremor in the voice of a tearful patient, the sense of heightened concern from the mother of a sick 5-year-old – can give insight into the severity of illness beyond what was conveyed by the words themselves. The conversation, in person or on the phone, allows for an iterative exchange of information, with one piece of information allowing the physician to ask the next important question, and so on. When a physician interacts with a patient through electronic communication via e-mail or text message, the tools that the physician uses to evaluate the patient objectively are removed.
Though patients are pushing for fewer in-person interactions with health care providers and have become used to electronic communications, clinicians need to be careful not to relinquish the opportunity for robust two-way conversations that allow them to obtain the information necessary to formulate a thoughtful diagnosis and plan. Recently, we have seen an important increase in lawsuits stemming from electronic interactions. In most cases, liability stems from the lack of an objective evaluation of the patient or perception of a lack of caring by the health care provider.
In a lawsuit we (G.C.) recently defended, a husband and wife had been seeing their primary care physician for 15 years. During one of the husband’s visits with the physician, the husband complained of weight loss and fatigue. The husband’s initial complaints were not concerning. However, at the next visit, the husband complained of new symptoms including chills, cramping, fatigue, and a poor appetite. A urinalysis did not point to a clear diagnosis. Thereafter, all communications between the husband and physician were conducted solely through e-mail. In those correspondences, the husband continued to make ambiguous complaints of the same symptoms. Without asking the patient to come into the office, the physician diagnosed the husband with a viral infection. Multiple e-mail exchanges ensued thereafter and, without ever setting eyes on the patient, the physician continued to assure the couple that the husband would get better over time. Meanwhile, the husband was developing endocarditis during the course of these e-mail exchanges that eventually led to his death.
What happened in this case was an unfortunate misinterpretation of the e-mails, which led to confusion, misdiagnosis, harm to the patient, and, ultimately, a lawsuit against the physician. While endocarditis is rare and difficult to diagnose under any circumstances, that physician did not ensure that he had the opportunity to evaluate the patient fully, to see with his own eyes how sick the patient might have looked, or to listen for a new murmur, or spot a Janeway lesion, all signs of more serious disease that may or may not have been apparent during a full evaluation. The uncritical use of e-mail made it easy to assume that the original diagnosis of a viral syndrome was correct, without providing the opportunity to critically reassess the patient’s concerns.
In this case, in addition to the missed diagnosis, there was an apparent violation of HIPAA. The e-mail address used by the physician was a personal e-mail account. HIPAA precludes physicians from discussing medical information through a means of communication that a non–health care provider might have access to. In an electronic age with multiple modes of communication, we have to be ever more careful to have a well thought out approach to the protection of patient privacy. It is easy to send a quick text message or e-mail to a patient, but it is important to understand that HIPAA applies even when a communication seems trivial or benign in nature.
In summary, society realizes that primary care physicians need to communicate at times other than at scheduled visits, and there is no longer an expectation that the physician will make house calls like the doctor in “The Addam’s Family” episode did 50 years ago. Society, and the courts, recognize that e-mail and text messaging are potentially useful forms of quick, convenient communication. We want to conclude with two important points. First, when using e-mails and texts to communicate with patients, use a secure HIPAA-compliant technology. Second, we need to be cautious that these convenient technologies do not creep into areas where they don’t belong, such as in making a diagnosis when doing so requires more interactive discussion and a physical exam. E-mail and text messaging are emerging as useful mediums for communication with patients, but as with any new technology, we need to be careful and thoughtful in their use.
Dr. Skolnik is associate director of the family medicine residency program at Abington (Pa.) Memorial Hospital and professor of family and community medicine at Temple University in Philadelphia. Mr. Cannon is an attorney at Marshall Dennehey Warner Coleman & Goggin in Pittsburgh.
