Relationship with patient is asking for trouble

The blurring lines between personal and professional relationships between physicians and patients have raised multiple ethical and legal concerns for the healthcare field.

If a physician is dating a former patient and continues to treat the patient in some way, that physician is "now in a very difficult position," says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin.

If the physician refilled a prescription for narcotics for that former patient as a favor, the patient could later claim he or she became addicted to the medication as a result of the erosion of the boundary of the doctor-patient relationship, says Derse.

"Conversely, the patient may claim that you inadequately treated the patient's pain because of your relationship," says Derse. "There is a potential for legal action on both sides of that scenario."

Those legal concerns are seconded by Jennifer Lawter, RN, JD, vice president of risk management at Emergency Physicians Medical Group (EPMG) in Ann Arbor, MI. If a physician continues to treat a patient after a social relationship has developed, he or she faces significant legal risks, Lawter says. "It is much more difficult to be certain you are providing appropriate and objective care if you are treating someone with whom you have a social relationship," she explains. "You are leaving yourself open to inferences that you would not otherwise have to deal with in a litigation environment."

In the case of a physician prescribing narcotics or other more significant forms of treatment to a person he or she is dating, Lawter says "that's just asking for trouble."

The blurring of the doctor-patient relationship can become a legal issue, affirms John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA. This issue is particularly troublesome if the physician is prescribing scheduled substances, Burton says. Many states have laws requiring any physician caring for a patient to have a formal doctor-patient relationship and medical records.

"If I'm dating you and I write you a prescription, then now I'm in trouble twice," he says. "We don't have a doctor-patient relationship, and there are no records." (For more information on legalities of dating a patient, see story, below.)

Legal problems can result from 'friending'

When putting your identifying information onto a social network, remember that you can be found not only by friends, but by people you don't want to find you, including past or current patients. "There are potential legal risks if a patient contacts you via social media," says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney.

Sullivan says that he joined Facebook to find out about high-school and college friends, until a patient posted a message on his "wall" to complain that he wouldn't prescribe her narcotic pain medications. "I immediately deleted my account," he says. "If patients post medical questions on your Facebook wall, there may still be a question as to whether they have given you consent to discuss their medical care in this open forum."says Sullivan. "'Friending' a patient will allow the patient access to all your personal photos and to all your other friends," he says. "Is that something you want to happen?"

If a physician "friends" a patient, "the normal boundary in the patient relationship starts getting eroded," Derse says. If that patient ends up suing for malpractice, the attorney will be able to discover these postings, he says. "If the physician said something that seemed funny while chatting online, it may now seem flippant," Derse says. "Now, all of that is fair game for the attorney."

For example, a comment on a patient's Facebook wall such as, "I told you it would probably turn out to be nothing!" can be used to demonstrate that the physician wasn't really taking the client's problem seriously, says Derse. "The attorney could use that to set the stage for how the patient encounter went overall," he says.

If a patient sends you a "friend" request, Derse recommends replying, "Sorry, I can't 'friend' patients or former patients."

It's all discoverable

Increasingly, organizations are taking stances against use of social-networking sites, Burton says.

"They are saying that physician employees should not be in any kind of relationship with patients, including on the Internet," he says. "A 'friend' request might start out as a very simple thing, but usually goes over the line to unethical behavior."

Recently, Burton was contacted by a waiter who served him at a restaurant, who found his contact information on the hospital web site and wanted help finding a psychiatrist. "This was a potentially explosive situation," he says. "The person seemed to be stable in my limited interaction with him, and I'm also an empathetic person and wanted to help."

Burton sent the man some referral information, but it raised the issue of what he would have done if the request had been different. "What if he emailed that he needed a new lithium prescription?" asks Burton. "Do I help him with that? Of course not, but how do I respond?"

Online communication is allowing patients to break down traditional barriers in contacting physicians, says Burton. "You have to be very careful, because you can get into legal and certainly ethical areas on both sides," he says.

You likely feel an ethical responsibility to offer help as a physician if you see a motor-vehicle accident with obviously injured people, says Burton, while a patient's email request for help is not as clear-cut. "You are clearly not legally obligated to provide a service to an individual who contacts you via social media," says Burton. "Remember that this is all discoverable in the event of a lawsuit."

Lawter says that many hospitals around the country have developed no-tolerance policies with respect to social networking. "Nurses and physicians have been fired for discussing patients on Facebook, even when names were not mentioned," she says.

In November 2010, the American Medical Association issued a policy on professionalism in the use of social media, including a recommendation that physicians should separate personal from professional information. "These will likely be used against physicians in lawsuits if they do not comply," Lawter says. "They specifically mention that, as a general rule, physicians should not accept 'friend' requests from patients, especially if your only relationship with them, at that point, is as a patient."

Sources

For more information contact:

  • John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540)266-6331. E-mail: JHBurton@carilionclinic.org.
  • Arthur R. Derse, MD, JD, Professor, Bioethics and Emergency Medicine, Institute for Health and Society, Medical College of Wisconsin, Milwaukee. Phone: (414) 955-8498. E-mail: aderse@mcw.edu.
  • Jennifer Lawter, RN, JD, Vice President, Risk Management, EPMG, Ann Arbor, MI. E-mail: jlawter@epmgpc.com.
  • Matthew Rice, MD, JD, FACEP, Gig Harbor, WA. Phone: (206) 790-5371. Fax: (253) 853-5617. E-mail: mricemd@gmail.com.
  • William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. E-mail: wps013@gmail.com.

Legal risks arise when dating a patient

Don't arm counsel with ammunition

Developing personal relationships with patients involves ethical as well as possible legal implications, says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney.

"Some ethicists have questioned whether it is wise to merge one's social and professional lives," Sullivan says.

The best practice for physicians is to consider patients and former patients to be off limits for personal relationships, says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin in Milwaukee, says. Several medical examining and licensing boards specifically state that having an inappropriate relationship with a patient violates their codes, Derse notes. "In some of these, a patient is defined as up until two years after medical care was provided," he says. "There is a large potential danger area."

While these codes generally are meant to apply to ongoing doctor-patient relationships, as in psychiatry, says Derse, "a savvy lawyer could use this in a malpractice lawsuit, as evidence that a physician was acting inappropriately." (For more information on relationships with patients, see story below.)

All hospitals, surgery centers, and office-based surgery facilities accredited by The Joint Commission must have a code of conduct that defines acceptable, disruptive, and inappropriate behaviors. They also must have a process for dealing with the defined inappropriate behaviors.

Evidence against the doctor

If you date a patient, "the first place where you'd get into trouble is not necessarily legally, but with the state board of medicine," says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.

Most complaints against physicians alleging an improper relationship with a patient ultimately end up at the state board of medicine or the hospital ethics board, which often reports to the hospital executive board, notes Burton.

If a patient complains to the medical examining board, says Derse, this complaint might be used as evidence against you in a subsequent malpractice lawsuit.

If your behavior is sanctioned, this sanction will be on your record and most likely would get reported out to the National Practitioner Data Bank, Burton warns. "These things are increasingly being investigated aggressively and reported out to boards, which have very little tolerance for these kinds of activities," Burton says. "And if the board investigates it, you'd better get a lawyer because your whole career is on the line."

Most medical and nursing societies have guidelines and/or rules that they enforce when it comes to moral and ethical obligations of their members, says Jennifer Lawter, RN, JD, vice president of risk management at Emergency Physicians Medical Group (EPMG) in Ann Arbor, MI. "Physicians and nurses need to be concerned about these expectations, as well as the various state-licensing organizations, so that they do not run afoul of the requirements," she says.

Most insurance coverage for medical-malpractice litigation doesn't typically cover licensing investigations, which can be costly, adds Lawter. "You may find yourself with licensing-violation allegations or perhaps be kicked out of professional societies," she says. "While this may not be as scary as a medical-malpractice lawsuit at first glance, it can lead to more problems than you may be prepared for. These issues will nearly always show up in any future litigation."


Placing barriers between patient and professional

There are certain barriers you have to place between you and the patient, as a professional, says Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAM Health in Federal Way, WA. "When those barriers start to break down, huge problems occur."

Rice notes that Washington state has taken a serious stand on this issue, with its Medical Quality Assurance Commission establishing written boundaries on appropriate behavior.

"Actions will be taken against you as a professional if you cross over the boundaries we believe to be there," says Rice. "This is critical for those people who think they can be a physician and casually associate with their patients."

If a patient decides, at any point in time, to bring an action for medical malpractice, the nurse or physician named in the lawsuit would be at a significant disadvantage if a personal relationship ever existed, says Jennifer Lawter, RN, JD, vice president of risk management at Emergency Physicians Medical Group (EPMG) in Ann Arbor, MI. "Past mates make vengeful plaintiffs," she says. "If you're going to get romantically involved with a patient, ideally it should be later in time, after treatment has terminated."