TO SUE OR NOT TO SUE… the internet and liability
A few days ago, a very interesting and rather thought-provoking article popped into my email inbox with the following title: “Chilling New Ways Patients are Suing Doctors”… hhhmm.
The article was written in the context of the American malpractice/liability landscape but it brought a couple of very pertinent points to light, the most important of those being that there can be no grounds for a liability suit if a doctor-patient relationship was never established. So what constitutes a real doctor-patient relationship??
Legally speaking, the existence of the relationship is a question of fact specific to each individual case. Courts traditionally look at many factors, including: Was there a contract between the doctor and patient; was a history and physical examination done; was a note generated; was there a bill for services; was a specific opinion rendered; was there any positive action taken by the physician to provide care for the patient; and was the case discussed in general or hypothetical terms, or in specifics? Generally most cases are pretty cut-and-dry, but with the advances in technology, there has appeared a grey area of various shades and hues.
Telephone and Internet Consultations
If a physician gives advice online or over the phone, the court will look at the individual facts to determine whether a doctor-patient relationship was formed. If the doctor phones an established patient, the relationship is presumed to be established. Similarly, if a doctor discusses a case with a patient via videoconferencing (through Skype, for example), a doctor-patient relationship has been established.
Discussing cases in a general manner with people online is a trickier situation. Giving broad hypothetical information about diseases or treatments probably isn’t enough to establish a doctor-patient relationship .However; there are times when this also becomes questionable. For example, if a physician gives generic information about a disease to an anonymous poster on a blog no relationship has been established BUT,if that same doctor then recommends that the patient schedule an appointment with their office, a relationship has been formed. So, if a patient schedules an appointment with a doctor’s office, a relationship has been formed.
What courts seem to use as the determining factor is whether the physician has taken some affirmative action to be involved in a patient’s medical care…if the answer is yes, then the doctor is liable.
This of course opens up another can of worms … medical ethics and internet/phone consultations. There are currently between 15.000 and 100.000 health-related sites in the UK alone and they have been visited by around 30 million people! The sticky legal mess here is of course how to define all these internet “relationships”! It is argued that important ethical aspects of a true clinical interaction such as dialogue and trust would be difficult to realize in an internet/telephone consultation, and the question arises regarding at which point would an internet doctor assume responsibility for the consultee?
So what did I make out of all of that? To avoid any confusions, misunderstandings, misinterpretations and misdiagnosis, stick to the good old “antiquated” face-to-face consultations … and document it well and clearly, just in case some court hearing has to peek into your notes!
And just in case you were wondering … all those “curb-side” consultations at the supermarket, the neighbourly barbecue or the pub ( no you did NOT see me there!), well, unless the information given was deemed substandard by expert testimony later on, suing would in all probability be unsuccessful.