Avoid relationship roles in your Web site practice
Don’t give specific advice to questions on the Web
If your practice has a Web site and you routinely answer e-mail from people who go to the site, you should make it clear that you’re not entering into a physician-patient relationship, health law attorneys advise.
"Physicians don’t want to casually participate in an Internet chat group or host a Web site that is supposed to be informational, and then find out through a lawsuit that someone perceived that they had a more formal relationship than the physician intended," says Bob Waters, an attorney with Arent Fox Kinter Plotkin & Kahn in Washington, DC.
Approach giving advice over the Internet the same way you would if you were asked for medical advice at a cocktail party, advises Karla Kelly, an attorney with San Diego-based Luce, Forward, Hamilton & Scripps. "You have to be very careful how your respond. If you give advice based on specific facts, you can be setting up a physician-patient relationship," Kelly says.
Having an informational Web page with e-mail capabilities is an ongoing problem for many professions, Kelly says. If you have a Web site or get an e-mail from a someone who isn’t an established patient, make it clear that you are providing only general information and not patient- specific information.
"To the extent that Web sites are crafted to invite people to ask questions about their medical conditions, physicians are opening themselves up to allegations that the physician-patient relationship is being established," Kelly says. The danger in physicians responding to e-mail from people who go to their Web site is that they are creating a relationship with a lot of obligations attached, she adds.
"If you establish a physician-patient relationship through the Internet, it means you have an obligation to manage and not abandon the patient. But to the extent that a physician merely sends out general advice about a particular condition, it’s like publishing a medical article. If you’re not dealing with a specific problem for a specific person, you are pretty safe," Kelly says.
Waters cites a hypothetical example of a cardiologist who receives an e-mail from someone who is having chest pains but adds that he had a pepperoni pizza for dinner. The questioner wants to know if he could be having a heart attack or is merely experiencing indigestion.
If this isn’t your patient, you could say that you can’t answer the question and advise him to call his physician. Or you could explain in general the symptoms of a heart attack, and advise that person that if he is experiencing any of those symptoms, he should go immediately to the emergency room.
Your Web page and your e-mail correspondence resulting from a Web page should have a disclaimer that you are not giving medical advice and that people with whom you are communicating should see a physician if they need treatment.
Waters suggests going a step further than just a disclaimer to protect yourself. He advises against a common Internet mechanism in which a person scrolls through the text and clicks a button to show he or she agrees.
"When a person merely clicks that he’s read the disclaimer, it is still uncertain whether he’s actually read or paid attention to the text. It’s unclear to what extent that would be interpreted as providing informed consent," Waters says.
Instead, he suggests a mechanism for logging into the site or sending an e-mail that requires the person to actually type a statement that he or she agrees that no physician-patient relationship is being established.
"It is protection for the provider, and it makes it clear to the person asking the question that he or she cannot construe the reply as medical advice," Waters says.