Risk and Liability Issues Associated with Electronic Communications

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FPIC Provides Broad Form Investigation Defense Coverage for Physicians

Cliff Rapp, LHRM, Vice President Risk Management, FPIC

Although written and verbal communications have traditionally been the primary method of communicating healthcare information, the Internet opens new avenues for providing such information and communicating with patients. In tandem with the potential benefits of electronic communications are sobering legal concerns and emerging increased liability exposure to the public through website capacity. To date, legal waters are largely untested. Consequently, it is important for those who communicate electronically to address the key risk management issues in developing office policies and procedures for Internet-based communication entailing patient privacy, confidentiality of patient information, security and encryption, informed consent, use of disclaimers, opportunities for patient education, and the implications of website linkage.

Recent data reveals that there is a growing demand by patients for specific healthcare information and directives. Along with that demand is an increasing expectation for online access and interactivity.

Electronic communication systems encountered in the healthcare delivery system include:

Practice-based Internet web pages
Electronic prescribing systems
Wireless personal data
Drug formularies, allergies, and potential conflicts
Electronic/hard copy e-mail transmission
Internal, intranet web pages

The advantages in communicating electronically with patients are numerous. Inherently, electronic transmission of information is faster than traditional modalities, and in some cases, instantaneous. Along with meeting growing expectations for quick and precise information exchange, electronic communications serve to inform and educate patients. This new form of communication can confirm delivery of communication/information exchange, and provides an automated follow-up system. Electronic communication also enhances informed consent and compliance process. Another advantage of this type of communication is that the process documents the sequence of communication.

There are, however, inherent risks in communicating electronically. The risks include online malpractice exposure. It is difficult to maintain the extension of the physician/patient relationship without face-to-face contact. At times a physician/patient relationship is inadvertently created where it would not have been through more traditional forms of communication. A major risk of electronic communication is the inappropriate disclosure of confidential patient information.

It is important to remember that seemingly intangible electronic communication becomes part of the patient's medical records, and as such could become evidence in a malpractice claim. Consider all forms of communication as potential evidence. In this context, will the communication support a defense or facilitate a claim? Such evidence could include:

Notes you author
Records made by others
Correspondence
Insurance & billing statements
Staff notations and messages
E-mail transmissions
Answering service records

In today's technology-dependent society it is difficult to not have contact with patients via electronic communications. It is important to understand that this form of communication has many inherent risks and as such, care should be taken to minimize such risks.

Information in this article does not establish a standard of care, nor is it a substitute for legal advice. The information and suggestions contained here are generalized and may not apply to all practice situations. FPIC recommends you obtain legal advice from a qualified attorney for a more specific application to your practice. This information should be used as a reference guide only.