Flirtatious texts from an ED nurse to an on-call attending emergency physician (EP) became a major problem for the defense in a recent malpractice case.
“The texts allowed the plaintiff attorney to prove that the nurse had attempted to reach the EP about a patient concern for over an hour without success,” says Shelly Garzon, JD, an attorney in the Tacoma, WA, office of Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane.
Another text between a physician assistant and supervising EP revealed that the EP was golfing and drinking while on call. A text exchange between a resident and physician about an increasingly concerning patient situation ended with “OMG, she just crumped,” meaning the patient’s condition deteriorated rapidly.
These text messages seriously damaged the defendant EP’s credibility.
“All three cases were settled, at least in part, because of the damaging effects that the text messages were expected to have in court,” Garzon explains. “Prior to the settlements, the doctors each had uncomfortable depositions where they were asked at length about the texts and their behavior or actions that the texts revealed,” Garzon adds.
Like many, an EP sending a text probably believe the recipient will be the only one to view the communication. “However, any texts that were sent about a patient, or even about a patient-related circumstance, that are still in existence at the time of a lawsuit, are discoverable,” Garzon warns.
W. Ann Maggiore, JD, an attorney at Butt Thornton & Baehr in Albuquerque, NM, receives discovery requests that specify not only emails, but also text messages.
“They are much more difficult to search, track down, and produce,” she says. “But if one is located, it wouldn’t be any different than an email communication, and could be used the same way.”
Usually, a discovery request is made for all communications (oral, written, email, or text message) that are not privileged communications between attorney and client. A request also may be made for phone records.
“It is important to remember that communications between medical providers are not privileged,” Maggiore stresses.
Some people store text messages in their personal phones for long periods of time, while others do not.
“The process of finding out whether text messages are still ‘retrievable’ can be resource-intensive,” Maggiore says.
The first challenge is finding out whether the texts were sent on a personal phone or one provided by the employer. The next step would be locating the phone on which text messages were sent.
“Then we have to find out whether the messages can be found,” Maggiore says, noting this usually requires sending the phone to a specialist capable of searching for the messages.
When Jill M. Steinberg, JD, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz in Memphis, TN, first meets with clients, she requests they provide any emails or text messages they have related to the patient in question.
“When requested by opposing counsel, we produce them by printing emails or taking screen shots of text messages,” she says.
Once an EP is aware of a lawsuit, he or she is under a legal and ethical obligation not to delete or destroy any texts or emails, Steinberg adds. Texts can complicate an EP’s defense in several ways. If a text message shows an EP was not responsive to a nurse or another physician related to a patient, that’s a problem for the defense.
“People sometimes say things in text messages that are short or disrespectful,” Steinberg notes. “That can come back to haunt a physician.”
Garzon says EPs simply should not be texting in the patient care setting.
“The liability risks are many,” she warns, outlining some risks involving text messages for EPs:
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Protected health information can be disclosed inadvertently.
“Very few, if any, HIPAA-compliant text message services or apps exist,” Garzon says. Thus, text messages are not encrypted or otherwise secured while in motion between phones or devices.
“The messages are stored on the sender’s and receiver’s devices at least until deleted, and perhaps even after that,” Garzon explains. “Most devices are not encrypted, and many cannot be.”
Some sent messages are stored in the cloud, unbeknownst to the sender.
“Thus, any patient information shared via text is at risk of unintended disclosure,” Garzon says. “This would constitute a reportable breach under HIPAA and HITECH [The Health Information Technology for Economic and Clinical Health Act].”
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There may be patient information that was conveyed or shared by text, but appears nowhere else in the medical record.
Steinberg says if a provider sends a text message to the EP advising of a lab value or some other important piece of information, the EP should put in the ED chart what was conveyed.
“If any instructions were given, they should make sure to do a note regarding the instructions,” Steinberg says. For example, an EP might text an ED nurse, “If the systolic blood pressure is under 90, call me back.” If the EP fails to put that information in the chart, he or she won’t have any proof in the record of those instructions.
“Rarely do senders and receivers think to put a text message into a patient record,” Garza contends. “Often, there is not even a good way to do so.” Thus, important information might not be conveyed to other ED providers. If litigation arises later, the EP is left without the defense of the information that was contained in the text.
“Often, several years later, the EP may not be able to retrieve the text, recall exactly what it said, or even recall that it existed,” Garzon notes.
Some electronic medical records automatically include texts into the medical record.
“If messages sent in this way are indeed encrypted and secure, this may be an acceptable way to promote fast communication,” Garzon says.
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The fact that the EP sent or received a text on a personal cell phone, as opposed to a phone used for work purposes, does not prevent its discovery.
“If there are any communications, of any sort, stored in any location, about a patient or situation that is the subject of a lawsuit, all of those things are discoverable, unless some other privilege applies,” Garzon says.
SOURCES
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Shelly Garzon, JD, Attorney, Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, Tacoma, WA. Phone: (253) 328-7806. Email: [email protected].
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W. Ann Maggiore, JD, Butt Thornton & Baehr PC, Albuquerque, NM. Phone: (505) 884-0777. Fax: (505) 889-8870. Email: [email protected].
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Jill M. Steinberg, JD, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, TN. Phone: (901) 577-2234. Fax: (901) 577-0776. Email: [email protected].
