E-mail leaves "paper trail" lawyers may utilize
"Controversial" messages can be devastating evidence
Imagine this e-mail from one of your colleagues being Exhibit A at your malpractice trial: "You misdiagnosed Jane Doe with indigestion last night and she showed up this morning on my shift with a heart attack and didn't live. Since this is your third time to miss this sort of thing, you really need to pay better attention."
"This would be devastating if forced to be produced in a lawsuit by Jane Doe's family," says Christy Tosh Crider, a shareholder at Nashville, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz.
Do you tend to say things in e-mail that you would never say in a formal letter or document in a patient's medical chart? E-mail is a "handy, yet dangerous tool" that can later be used in litigation, warns Crider. "E-mail is oftentimes used more like 'conversation,' rather than a written document that can be retrieved years down the road," she says.
On the other hand, e-mail could help mitigate liability risks when used correctly, because it provides an exact record of what a patient was told, such as with discharge instructions, says Crider.
Since e-mails may be discoverable in the event of a lawsuit, consider each communication as a potential exhibit at trial, with the same care you would treat a written document. "Off-the-cuff remarks made in e-mails between owners of health care facilities and health care providers about staffing, supplies, and internal problems have yielded high punitive damages awards in jury trials," says Crider.
For instance, in the defense of a lawsuit regarding a delay in treatment, it could be devastating if e-mails sent among ED doctors or nurses were uncovered that noted complaints about wait times, says Crider.
Address patient privacy concerns
There is nothing in the Health Insurance Portability and Accountability Act (HIPPA) that prevents you from communicating with a patient by e-mail, but you must have the patient's consent to do so. "I highly recommend getting that in writing," says Crider. "With joint or unsecured e-mail accounts, there is a danger of protected health care information being communicated to a third party."
There often is a false sense of confidentiality when communicating by e-mail. "In fact, if the computer is not secure and access is open, confidentiality is not protected," says Danielle Trostorff, a shareholder in the Healthcare Practice Group of Baker, Donelson, Bearman, Caldwell & Berkowitz in New Orleans.
E-mails between ED physicians and staff involved in the patient's care would be discoverable, since these would be considered as part of the medical record and documentation of care. "E-mail communication of medical care is additional evidence in support of the ethical, timely, and appropriate level of care rendered," says Trostorff. "Proper training is essential if e-mail is a vehicle for communicating treatment impressions for treatment decisions."
Attorneys normally would not ask for a physician's personal e-mails to be produced in discovery, and if they did, the defense lawyer would probably object, says Trostorff.
However, if there was an allegation that a patient's protected health information was disclosed by a physician in an e-mail to a third party not involved in their care, that might be considered a HIPAA violation that would be pursued by the Office of Civil Rights.
Also, medical errors may be admitted in e-mail communications, and not reflected in medical records. In this case, the communication may not be protected under attorney-client privilege or peer review, notes Trostorff.
The informality of e-mail also can expose you to liability risk. For example, an ED physician may let it slip that he was taking prescription medication which made him drowsy while performing a procedure involved in a malpractice action. He asks his colleague not to mention this information.
"Normally, an informal and off-the-record personal conversation would go undetected," says Trostorff. "However, it is now memorialized in an e-mail and is an admission against interest. E-mail leaves a paper trail that normal lines of communication do not."
Sources
For more information, contact:
- Christy Tosh Crider, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 211 Commerce Street, Suite 1000, Nashville, TN 37201. Phone: (615) 726-5608. Fax: (615) 744-5608. E-mail: [email protected]
- Danielle Trostorff, Shareholder, Healthcare Practice Group, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 201 St. Charles Ave. Suite 3600, New Orleans, LA 70130. Phone: (504) 566-5224. E-mail: [email protected]
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