E-mail for doctors is here to stay, but precautions are needed to curb the risk
E-mail for doctors is here to stay, but precautions are needed to curb the risk
Take two aspirin and e-mail in the morning’ creates serious risk
First of two parts on risk and e-mail
E-mail is becoming increasingly common in health care, but chances are your policies and procedures have not kept up with the serious risks that can be created when people send e-mail without stringent safeguards.
Recent inducements for physicians to e-mail patients more could dramatically increase the risk, some experts say.
Some computer-savvy doctors have used e-mail to communicate with patients for a while, but they weren’t paid for it. Now health plans and medical groups across the country are beginning to pay doctors to reply by e-mail in the same way they pay for office visits. Blue Shield of California, for instance, pays doctors $25 for each on-line exchange, the same as it pays for an office visit. Some other insurers pay less for e-mailing, and some patients are charged a $5 or $10 copayment that is billed to their credit card and relayed to the doctor.
The new payments are part of an effort to improve efficiency and cut the costs of office visits, the insurers say. The convenience appeals to both doctors and patients.
Anthem, Blue Cross, Cigna, and Harvard Pilgrim report they have been paying for e-mail consultations for about a year. Blue Cross and Blue Shield plans in California, New York, Florida, Massachusetts, New Hampshire, Colorado, and Tennessee are beginning to pay between $24 and $30, including any copayment, for on-line consultations. Empire Blue Cross and Blue Shield recently began testing a payment system with New York doctors at the Columbia University and the Weill Cornell Medical Center.
Kaiser Permanente reports having tested a payment system in the Pacific Northwest and is starting the program this year in Hawaii and Colorado. Kaiser’s salaried physicians receive credits for sending e-mail, and those credits are used to increase their pay.
Those payments are making some risk managers worry. Anything that encourages more e-mail could foster a more casual attitude, they say, but it appears there’s no stopping the trend.
With everyone else in the world using e-mail so much, it is unrealistic to think that doctors will not use it to communicate with patients, says
Mark Coel, JD, an attorney with Michaud Buschmann in Boca Raton, FL, who regularly counsels physicians and physician groups on a variety of legal and regulatory matters. However, he warns that there are serious liability risks if doctors do so without the proper safeguards.
In particular, he is concerned that payments for using e-mail could encourage doctors to use e-mail too much and without considering all the ways an e-mail message could backfire. Risk managers should set up practice parameters that outline what doctors (and other health care professionals) can and cannot discuss by e-mail.
Some of those parameters will involve clinical decisions about when a patient must be examined in person and what can be discussed by
e-mail. Generally, Coel says, the proper use of
e-mail would be for the same type of query or information exchange that could safely and appropriately take place over the phone — a patient asking whether it is OK to take one medicine with another, for instance, or asking
if a symptom warrants a return visit.
In those situations, e-mail serves the same purpose as a phone call but might be more efficient for both parties.
"E-mail can be perfectly fine as long as everyone knows where the line is and doesn’t step over it," he says. "You don’t want to use the Internet for something that really should be handled in an office visit. The things that require seeing the patient in person and examining him with your own hands have not changed just because it is convenient to send off an e-mail in 30 seconds."
Watch what you say and how you say it
Physicians must be especially careful about the content of e-mail sent to patients, says Edward C. Mintzer Jr., a partner with the law firm of Rawle & Henderson in Philadelphia. Mintzer focuses his work on malpractice defense, and he also is a judge pro tem and mediator for the Philadelphia Court of Common Pleas. The e-mail will become a permanent record and requires the same care as writing any other part of the record, he says.
E-mail is notorious for being unable to accurately convey the writer’s tone — what you mean as a serious warning may come across as a mere suggestion, or vice versa. A friendly joke that would make the patient chuckle if you said it in person might come across as snide and unprofessional in an e-mail.
"Plus, there is the question of the recipient’s reading ability, and all the ambiguous or complicated terms that a doctor might use," Mintzer says. "Some patients will be illiterate or nearly so, and some will have PhDs. How can you expect a doctor to write an e-mail that anyone can understand?"
All of those factors can undermine the informed consent process, he notes. And consider how often e-mail delivery fails. How can a physician be certain that the patient received each e-mail containing important information?
It also is possible to violate the Health Insurance Portability and Accountability Act (HIPAA) with e-mail to patients, he notes. A simple typing mistake in the address can send the e-mail to a total stranger or a work colleague.
Coel agrees that HIPAA violations are a serious risk and he advises using encryption software to make the messages more secure.
There also is the question of which patients should receive e-mail from a physician or other health care provider. Blanket use of e-mail with patients is risky, but Mintzer says it could be used with minimal risk if the doctor already has an established relationship with the patient.
"That changes the picture when you know the patient and his condition, you know his education level, you know how to effectively communicate with him by e-mail," Mintzer says. "And conversely, you may have some patients you know very well but you know that this person is not a good candidate for this kind of exchange. If the patient is not educated, has trouble seeing, or has any other condition that would impede his ability to understand your e-mail, just stick with the tried-and-true methods."
E-mail use in health care is different from e-mail in most other settings, says Philip Rosenberg, JD, chairman of The New York State Bar Association’s Health Law Section and a partner in the firm of Wilson Elser based in the firm’s Albany, NY, office. The health care provider’s obligation to keep information confidential creates an added risk that might not be found in, for instance, a manufacturer communicating with clients and vendors by e-mail.
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"One of the questions that arises is what happens when there is a breach of confidentiality and whether that breach would be covered by the provider’s professional liability carrier or if additional insurance is needed," he says. "I advise risk managers to take a look at their existing insurance policies to see whether or not such a breach would be covered. My guess is there would be some resistance."
Written guidelines are a must, Rosenberg says. The guidelines should cover technical aspects such as encryption but also content guidelines and the need to preserve electronic documents, he says.
"I also would want the patient to sign a consent authorizing the provider to communicate by e-mail," Rosenberg says. "That consent should explain the risk of unintended recipients and require the patient hold you harmless for any unintentional disclosure of confidential information. The e-mail communication is in large part for the convenience of the patient, so the quid pro quo would be for the patient to hold you harmless."
(Editor’s note: In next month’s Healthcare Risk Management, the second part of this story will further examine how risk managers can use policies and procedures to lower the risk from e-mail.)
Take two aspirin and e-mail in the morning creates serious risk First of two parts on risk and e-mail E-mail is becoming increasingly common in health care, but chances are your policies and procedures have not kept up with the serious risks that can be created when people send e-mail without stringent safeguards.Subscribe Now for Access
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