Medico-Legal Issues and Email

The Internet is such a public forum that many people are concerned about medico-legal issues relating to seeking, giving and receiving advice about patient management. There are also issues to do with privacy, copyright and confidentiality. Although, in truth, the Internet has not changed anything it is valuable to give them some consideration

Liability

The concerns here are

• is requesting advice about a case an implicit indication of incompetence or mismanagement - your own or someone else's?
• does laying out the facts of the case so that others can give informed opinions increase the risk of an accusation of negligence?
• if you offer advice do you involve yourself in liability?

Of course, legal matters vary from nation to nation but the overall tenor of the advice we have received is that nothing has changed. Giving and receiving advice from a colleague is one of the oldest institutions in medicine and the mechanism of so doing doesn't change the legal implications. There has always been some implications inherent in giving and receiving advice.

What is changed is the ease with which third parties can find out about these transactions. Corridor consults leave no paper trail and a court would have to sub-poena you to find out what you said, or can recall saying. Messages to a mailing list are archived and in the public domain; one can be certain that the archives of the mailing lists are trolled by unscrupulous lawyers for evidence of negligence. Although people may think that email correspondence is private, in fact, when conducted as part of your business it is not and the courts could demand a copy of your email, just as they can demand a copy of the chart. So advice given or received by email is not something that disappears.

The size of the risk is much less certain. No member of an orthopaedic mailing lists has got into trouble for email transactions. A New York lawyer who is a member of the orthopod mailing list had several interesting things to say

• for a patient to have a claim against a doctor there has to be a contractual relationship between the two. Giving advice to the patient's doctor does not constitute any such contract.
• Asking for advice is not an admission of negligence. In fact he suggested that the main difference the Internet makes is that asking for advice is now so easy, that not asking for advice may be seen as negligent at some point in the future!

The bottom line is that all medical interactions on or off the Internet should be bound by correct ethics and prudence. If you inquire and offer advice in good faith it is unlikely that you will increase your risk.

Copyright

Ideas and words which you originate are inherently copyright. You do not have to state a claim overtly, although doing so may warn other people that you take the issue seriously. Copying something, even using a photostat machine, without securing permission is a breach of copyright which most of us are guilty of. It becomes even more serious if copies are used for profit and if credit for authorship is falsely claimed.

That said, there is such flux on the Internet, it is so easy to copy stuff and there is such a tradition of sharing information. The result is that material is frequently copied. On this site, for instance, material was assembled from several sources to create a resource page on viruses. We have acknowledged this, we are not attempting to profit from it and are making attempts to secure permission from the original authors.   

Messages and images sent to an email list and thereby being posted in archives are still copyright and may not be used again without permission. In the orthopod mailing list this issue was discussed and it was agreed, with no dissenting opinions, that members of the list could copy material sent to the list and use it, with acknowledgements, for educational purposes only. This policy does not void copyright and new members may not be aware of it so it should be reviewed from time to time. However, managing email lists would be impossible without some latitude in this area because people constantly copy the messages which they are responding to and send them back in their response.

Confidentiality

It is essential that the identity of patients whose cases are discussed on the Internet are protected. Details such as the name on the corner of an xray   should be attended to.

 Privacy

As noted elsewhere in this Guide the privacy of Internet communications can be absolutely secured by use of encryption. For some reason the concern about the security of messages sent between individuals over the Internet is much higher than concern about faxing, standard postal service and telephone communication - all of which are much less secure than unencrypted email messages. However, the concern and the solution is there so you might as well use encryption for private and confidential documents.

 

Direct advice to patients

If you are active on the Internet, posting material or sending message to an archived mailing list patients or their relatives will find your name and address and send you messages asking for medical advice and management. The best advice is not to respond. It is also a good idea to have posted on your site a statement about why you cannot respond to such enquires - so as not to appear arrogant. The availablity of medical information on the Internet and the questionable quality of much that is available will force a change in the relationship between patient and physician. We will have to take more responsibility for educating patients. If you want to lead in this area you may like to respond to these enquiries by directing patients to educational resources on the net but doing this exposes you to the hazards of nuisance, persistent demands and unethical interference between the patient and their physicians.
The proportion of unstable personalities in the population of patients who seek medical advice from an unknown doctor half a world away on the Internet is quite a bit higher than the norm.

Waivers

• IMHO these are valueless as protection.
• If you give advice in public and someone comes to harm through taking that advice disclaimers will not help the situation.
• The main value of disclaimers is in indicating that you and the site have thought about this issue and want the visiting public to know what the policy is.

The Orthogate Disclaimer contains statements about the following issues -
Copyright, Accuracy, Medical advice, Warranties, Liability, Differences between States or Countries, Online Conduct, Third Party Content, Disclaimer of Endorsement & Information Subject to Change