May 2008

Avoiding the 'e-risk' of e-mail

by Timothy J. Feuling

A few years ago, doctors had only two types of contact with patients -- in person, and occasionally on the phone.

Today, more and more current and potential patients are using e-mail to ask questions, get advice, clarify billing problems, and even make appointments. A survey by Harris Interactive found that 77% of adult Internet users would use e-mail to contact their medical doctors, a figure that is likely to be at least as high for chiropractic patients.

Although the convenience of e-mail makes it a popular means of communication, it presents a number of risk management issues that doctors must be aware of. In fact, the issue of "e-risk," as it is dubbed, has already become a major concern for the medical profession.

"...There are risks in communicating outside of pre-existing patient-physician relationships, and in using standard, unencrypted e-mail to communicate with patients, or to transmit patient information to third parties" said Mark Gorney, MD, medical director for the Doctors Company, one of the largest national malpractice carriers for medical doctors.

Among the primary concerns are patient confidentiality, security, and a tendency to give informal advice.

For instance, if a patient calls and says: "I am due for my regular appointment in two weeks, but I've been having those same pains in my side that I had a few months ago. Nothing really terrible, but kind of uncomfortable. Should I come in sooner or just wait for my regular visit?"

If you're familiar with the patient's frequent problem with muscle strain due to his job, you might be tempted to shoot back an e-mail response saying: "I'm sure it'll be okay to wait. If the pain gets worse, we can get you in to check for subluxations before your regular appointment."

Innocent enough, right? Yet, by giving "medical advice" via e-mail, you may leave yourself open to a charge of malpractice if the pain turns out to be something requiring immediate attention. The patient can conceivably accuse you of having made a "diagnosis" via e-mail causing a delay in getting care. Far fetched? Not at all! Many million dollar lawsuits have been filed for far less cause.

To avoid even the perception of wrongdoing, e-mail must never be used to perform diagnoses. Instead, information should be general, and in keeping with your normal practice purpose. In the above case, for instance, it would have been best to respond: "It's impossible for me to make that determination without examining you. If you'd like to come in right away, I'm sure we can set up an appointment."

One example of a lawsuit spurred by e-mail communication involved an interventional radiologist who gave advice to a 65-year-old woman who had selected the "contact us" option on the practice's website.

As reported in the Aug. 3, 2007 issue of Medical Economics, "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.'"

So far, I haven't seen too many cases involving chiropractors, but it's just a matter of time.

E-mail also raises privacy issues, particularly in light of recent privacy regulations instituted by the US Department of Health and Human Services. E-mail messages are not secure and should never be used for communicating private information.

The risk of malpractice claims based on e-mail communication is so serious that the American Medical Association (AMA), other leading national medical societies, and liability carriers representing more than 70% of insured physicians founded a consortium called the eRisk Working Group for Healthcare, which developed a set of detailed guidelines for handling e-mail communication with patients.

Although the problems faced by doctors of chiropractic will differ -- and are usually less severe -- than those faced by medical physicians, these guidelines are valuable for DCs as well.

Visit the World Chiropractic Alliance website (www.worldchiropracticalliance.org) for a link to the complete eRisk Working Group for Healthcare's Guidelines for Online Communication.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and vice president of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800-883-0412 or by e-mail: feuling@cbsmalpractice.com ).

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Some rules to remember about e-mail communication

***  Tell patients NOT to use e-mail for urgent matters.

***  Let patients know who else might read your e-mail messages (your C.A., billing clerk, practice colleagues, et. al.) and that a written printout of their messages will be placed in their records.

***  Establish what type of transactions (appointment scheduling, general information, billing questions, etc.) will be permitted over e-mail.

***  Ask patients to put the category of message in the subject line of their message: "appointment," "billing question."

***  Have patients put their full name in the body of all messages.

***  Set up an automatic reply to acknowledge receipt of messages.

***  Print all messages, with replies and confirmation of receipt, and place in patient's paper record file.

***  Maintain an e-mail list of patients, but do not send group mailings where recipient names and addresses are visible to each other.

***  Avoid anger, sarcasm, harsh criticism, and libelous references to third parties in messages.

***  Be sure the person you are e-mailing is your patient. Verify e-mail address changes with the patient before using them.