Patient e-mail perils

By: Lee J. Johnson, JD
Medical Economics

Suppose patient@aol.com finds you through your website and e-mails you to get your opinion on a specific medical problem. How should you reply?
E-mail seems so informal and conversational that you may be lulled into casually responding to requests for medical advice. But e-mail creates a written, reproducible, signed, and dated document—which the patient has access to, and which can become evidence in a malpractice lawsuit against you.
In one case, an interventional radiologist gave advice to a 65-year-old woman who had selected the "contact us" option on the practice's website. The woman had written that her doctor recommended a vertebroplasty because radiographs of the lumbar spine showed diffuse osteoporosis and a collapsed third lumbar vertebra. The radiologist responded that he, too, recommended the procedure. An orthopedic surgeon performed the vertebroplasty, complications ensued, and the patient became paraplegic. The resulting lawsuit alleged that the radiologist had "negligently advised" the woman to undergo vertebroplasty "without conducting physical examination and medical testing that would have disclosed the presence of metastatic cancer."
Malpractice liability for medical advice is determined by duty and standard of care. Therefore, doctors who give advice on the Internet may be creating a duty to the patient, which the doctor must discharge in a "reasonable physician" manner in order to avoid liability. It's immaterial whether the advice is free or reimbursed, solicited or unsolicited, to an existing patient or to an anonymous patient@aol.com.
An attorney could argue that a physician who offers an incorrect diagnosis based only on a patient's written description of her symptoms isn't acting within the standard of care. And because hands-on medicine is the standard on which medicolegal tenets have been built, a plaintiff's attorney is likely to maintain that a "reasonable physician" would see the patient in person before rendering advice.
The legal definitions of duty and standard of care ultimately may evolve to accommodate teleradiologic practice. For now, though, medical advice offered via the Internet, especially to a patient you've never seen, should conclude with a disclaimer. Here's an example: "This is not an official medical opinion because I haven't performed an examination. If you need specific medical advice, make an appointment with me or with a physician in the appropriate specialty in your area."
A great potential benefit of teleradiology is the ability to offer routine—or even high-caliber—medical services to patients who wouldn't otherwise have access to care, as in certain rural areas. That raises another issue: If your website attracts patients nationwide, make sure that your malpractice insurance covers activities in other states. Additionally, check to see that corresponding with out-of-state patients doesn't constitute practicing medicine without a license.
Ultimately, the interventional radiologist mentioned earlier dodged a bullet when the plaintiff's attorney decided his case would be stronger if he focused exclusively on the orthopedic surgeon. But the lesson remains: When advice is offered via e-mail, a duty may be created and there will be a written record of how that duty was discharged.