Patients have eagerly embraced the Internet and its email capacity to increase their knowledge and access to medical information. Along with access to countless patient support "chat rooms" and an ever-increasing volume of full text health and medical literature, the Internet also offers a virtually barrier-less opportunity to engage physicians in email dialogue. While this opportunity is seductive and cost-free to patients, physicians should exercise care and wariness in their email exchanges with patients - especially if the patient is unknown to them.
This issue of the Journal of Medical Internet Research features an interesting study illustrating the willingness of an astoundingly high percentage of anesthesiologists to enter into a dialogue with unknown patients . The study, which looks at the quality and quantity of anesthesiologist responses to a patient problem presented through email communication, generated a 54% response rate. Of these, 83% of the responses were assessed as friendly in tone and 41% went so far as to suggest a diagnosis to the inquiring email patient. The study reproduces the results of an earlier study with similar methodology , demonstrating a surprising naiveté on the part of well-meaning physicians.
This brief commentary will summarize the common law legal risks of responding and offering advice or diagnostic suggestions to patients over the Internet. It will focus primarily on the concept of duty and how it has evolved in the United States. (Medical negligence cases in the United States are state law causes of action. Thus there are jurisdictional differences from state to state. However, the concept of duty as discussed in this article is well-settled law, and the consensus in virtually all U.S. jurisdictions.)
The risks in providing email medical advice flow from the inadvertent birth of a physician-patient relationship and a resulting duty and responsibility to the patient. Once there is a cognizable physician-patient relationship, the physician has a duty to provide care and advice that is consistent with the applicable standard of care. The standard of care varies somewhat from jurisdiction to jurisdiction. However, it generally requires that the physician conform to the standard of a reasonably prudent practitioner practicing under similar circumstances. The standard typically does take into account specialty status. Medical negligence is defined as a breach of the standard of care resulting in the patient suffering a harm with quantifiable damages.
In order for a physician-patient relationship to be formed, there must be an assent by the physician to see or counsel the patient, although this may be indirect. In the common law, this agreement is referred to as an implicit contract. In order for a duty relationship to have been formed, the content of the interaction must include some evaluation, even if only a rudimentary one, by the physician as to the patient's complaint. Finally, the patient must rely upon the physician's determination, however preliminary that evaluation might have been.