E-practice harbors murky legal issues
Legal and regulatory issues must be resolved
So you’ve decided to join the 21st century and bring your practice into the e-health marketplace. Here are some dilemmas you may face:
1. A patient you have treated for a chronic illness e-mails you from his vacation home in another state about his disease. You e-mail recommendations back to him and relay a change in medication to a pharmacy near him. Are you practicing medicine in a state where you aren’t licensed?
2. Your practice Web page includes a section with information on AIDS and its treatment. Can one of your sponsors track the "hits" to the Web page and market information to your patients?
3. If a patient sends you a vague question via e-mail and you base your reply on what you think he is asking, can you later be held liable for giving out the wrong advice?
"Like many other areas, health care is having to adapt to the e-world. Given that the health care industry is a highly regulated field, there are a number of legal and regulatory issues that need to be addressed by physicians before they embark upon an e-mail system," says Bob Waters. He is a health care and telemedicine attorney with Arent Fox Kinter Plotkin & Kahn in Washington, DC.
Some of those regulatory issues include:
- Licensure.
If you’re providing any type of diagnostic or treatment by e-mail or the telephone, you need to make sure you are licensed in the jurisdiction where the patient is located.
Licensure is an issue that has largely been ignored in the past, Waters says. For instance, physicians who live near the border of a state may have patients who live in surrounding states. If a patient calls the physician from home and the physician advises him to do certain things, technically, the physician could be practicing in a state in which he or she is not licensed.
"State medical boards have been increasingly concerned, as have state legislatures, that doctors who practice electronically need to be licensed not only where the physician is located, but where the patient is located," Waters says. More than 25 states have already passed laws to deal with licensure and electronic practice of medicine, he adds.
- Standard of care or appropriateness of care.
When you deal with patients over the Internet, make sure that you have adequate information to make a diagnosis or decide on a course of treatment, Waters says. "Some conditions may be easily treated or diagnosed based on information obtained electronically," he adds.
For instance, if it is allergy season and Joan Smith has previously been treated for allergies by a physician, she may be able to e-mail her doctor and get a prescription via fax, telephone, or e-mail.
"This is an issue also being looked at by both medical and professional groups and state boards to ensure that the physician has obtained adequate history and physicals in order to make the recommendations," Waters says.
Where the issue becomes more complex is when the first physician-patient relationship is via the Internet, Waters says. For instance, a physician’s Web site may supply general information, but providers should be careful not to supplant the physician-patient relationship by becoming very patient-specific in providing information, he adds. "The question is whether the information on which the doctor is making a recommendation is adequate if there subsequently is a court suit."
The issue will become more complex as evolving technology makes it possible for physicians to treat patients by telemedicine, Waters adds. "When we talk about treating a patient over the Internet, the image that comes up is a questionnaire-type relationship. But as the Internet evolves, that experience is going to be more like telemedicine."
For instance, there are already a number of services to help patients manage their own health care conditions, whether it’s diabetes, congestive heart failure, or other chronic conditions where lab data, other test results, and information such as weight can be routinely updated via the Internet. "Physicians who are going to use these types of monitoring tools need to structure the relationship very carefully to make sure they are not taking more risk or liability than they originally had contemplated," Waters says.
- Liability.
One pitfall of dispensing advice via e-mail is that patients who e-mail you a question may be vague and incomplete, points out Gwen Hughes, RHIA, practice manager with the American Health Information Management Association in Chicago. This could put you in the position of having to spend a lot of time responding to e-mail to cover the topic completely and not make an error in response.
"Eventually, a physician could find himself in court because of a response that was well-intended at the time. It may have been a good response, based on the information the patient gave him, but the doctor will still be in the position of having to defend himself or settle," Hughes says.
"As physicians strive to provide more customized information to particular patients or groups of patients, they should be careful how they structure [that information] and be cognizant of the potential liability," Waters says. He suggests that physician work with competent counsel to resolve any legal issues.
- Privacy and confidentiality.
"Physicians have the legal and ethical responsibility to protect their patients’ privacy," Hughes says.
In addition to making sure the patient information you transmit is secure, be careful as you establish other types of Internet services that may not seem like a physician-patient relationship, Waters suggests.
Internet sites have the technical capability to generate a list of people who have accessed the site to whom they could conceivably market.
"As doctors develop contracts with vendors for Web sites, they should very carefully to cover that issue and receive firm assurances that the consumer can be confident that this information will not be adversely used," Waters says.
There are a lot of concerns that patient-specific, personally identifiable information should be protected in any kind of transactions and in a large number of federal and state laws addressing this issues, Hughes adds.
Most recently, the U.S. Department of Health and Human Services issued proposed regulations under the Health Insurance Portability and Accountability Act of 1996 that set minimum standards that must be met if identifiable patient information is going to be transmitted electronically.
And as use of the Internet increases, it is likely that more government agencies and governing bodies are going to create more laws to deal with it. "We are adapting 19th century laws to 21st century technology. In some cases, the law may overshoot and prohibit practices that are widely beneficial. In others, it may undershoot. It’s likely to take a number of years to work through a system that’s most acceptable," Waters says.
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