A Medical Economics Web Exclusive

Malpractice: Watch out for new-technology traps

While the Internet and other electronic advances offer exciting opportunities, they present legal dangers as well.

By David Karp

Physicians today complain that demands of managed care plans, increased overhead, and reduced reimbursements put them under constant pressure to see more patients. That generally means spending less time with each one, which increases the risk of diagnostic or treatment error. Some HMOs also force doctors to make clinical decisions on the basis of what’s covered by the plan–via rigid authorization rules, referral limitations, or restricted drug formularies–rather than by what’s medically indicated or necessary. All these influences increase the chance of a malpractice suit.

A number of new technologies, however, offer physicians ways to reduce liability by improving patient care and avoiding medical errors–but only if these advances are used intelligently. If they’re not, your liability exposure may actually increase. Here’s what to watch out for.

Electronic medical records

Nothing weakens a malpractice defense faster than incomplete or faulty medical records. Yet many doctors still don’t understand how important those records are in the litigation process. If a case comes down to the plaintiff’s allegations of negligence vs. the physician’s claim that his care was appropriate, the medical record will ultimately sway most juries, judges, and arbitrators.

Electronic medical records can be a great asset to a malpractice defense as well as improving office efficiency. They’re more accessible, more legible, more complete, and better organized than most handwritten charts.

Despite those advantages, relatively few doctors use EMRs today. One reason is price. Good EMR systems are still relatively expensive, but cheaper systems may be no bargain. For example, some of them don’t force you–as the good systems do–to enter the necessary information in each field before you move on or exit the system.

As the technology continues to improve, and system costs drop as expected, doctors should recognize EMR as a professional and legal necessity.

E-mail with patients

E-mail has become one of the most popular and widespread technologies in America today because it saves time, and it’s faster and cheaper than regular mail. Many doctors have also begun using e-mail to contact their patients. But while this modern method of communication may be convenient for physicians, it can be dangerous because the practice of medicine often requires face-to-face contact. E-mail also creates a variety of other possible liability risks:

• Because of the danger of unauthorized access, e-mails to patients about their medical condition may lead to a breach of confidentiality.

•Patients may use e-mail to seek quick medical advice rather than wait for an appointment. If something goes wrong, however, the doctor could be sued for not insisting that the patient come to the office.

•E-mail messages aren’t always picked up in a timely fashion. Someone in the doctor’s office must read each one, print a copy for the chart, and either relay the message to the doctor, or respond to it. Since most office staffs are already overburdened, there’s a danger that such messages could be lost in the process.

For all these reasons, physicians considering e-mail exchanges with their patients should first ask their liability insurer about the pros and cons of such communication, and how to reduce the resulting risks. Make sure patients understand that e-mails may not be read the same day, and that they should still call the office immediately for any urgent questions.

Handheld devices

Many doctors now use handheld electronic devices to check drug information and potential interactions. Some devices can also be used to write and print out prescriptions, helping to reduce mistakes caused by illegible handwriting. If the doctor’s office records are computerized, and integrated with the system, the handheld device can enable the physician to check a patient’s medical history before prescribing.

But, while such handheld technology provides obvious convenience, it also creates new risks. For example, if the office records aren’t computerized, the prescribing doctor–or others in the practice who treat patients–might overlook important information that could influence his choice of medication; similarly, if data from the handheld isn’t transferred to the chart, records won’t be complete.

Using the Internet

Physicians are obligated to know the standards of practice in their own specialty, and they can safely rely on established professional journals and continuing education courses to keep abreast of current clinical research and treatments. The Internet can help you keep up to date too. But just because a Web site promotes or describes a new approach doesn’t mean that it has instant credibility, or that a doctor must try it. Unless an Internet site is operated by a reputable medical institution, organization, or authority, there’s no way to judge the accuracy of the information it provides.

Even if the site sounds official, physicians should try to find out who’s operating it, and check his credentials, since some online physicians aren’t licensed to practice. Some sites offer advice from supposed medical experts who claim to be board certified in fields not recognized by the American Board of Medical Specialties. Other sites recommend or sell substandard and even dangerous products. If the site seems legitimate, and the advice it offers sounds plausible, but hasn’t been reviewed in scientific journals, check it with your colleagues in the same specialty.

When patients ask about material they’ve seen on the Web, evaluate it in the same way you would if you were doing a search yourself–and teach the patient how to evaluate sites, too. Bottom line: evaluate the treatment the patient is asking about, then explain to the patient what treatment you consider appropriate, and why, documenting the conversation as usual.

Setting up your own Web site

I see nothing wrong with a physician setting up his own Web site to provide patients with general information on office hours, immunization schedules, descriptions of diseases and conditions, details on prescription drugs and home care remedies, news and commentaries on health related topics.

A well-constructed Web site can save the doctor a lot of phone calls, and reduce unnecessary office visits. But if you put up such a site, make it clear to patients that the site is not a substitute for in-person medical care for specific problems.

Attempting to diagnose, treat, or prescribe drugs for unseen patients online is clearly below the standard of care, and possibly illegal. Liability insurers are concerned about this kind of vending-machine medicine, and many now specifically exclude coverage for Internet practice.

The author, a loss-prevention consultant, heads David Karp Associates in Cloverdale, CA. This article is adapted with permission from Medical Liability Monitor newsletter.

Additional reading

For more information on the topics covered above, here’s a list of relevant articles from previous issues of Medical Economics:

EMRs EMRs cost too much? This group says No Way! Apr. 12, 2002
EMRs boost efficiency, too. Apr. 12, 2002
Toward a handheld EMR. Jan. 11, 2002
Online labs and EMRs: A marriage that clicks. Dec. 3, 2001
Online consults: Faster, easier, more complete. The Connected Physician (supplement), Fall 2000

E-mail with patients E-mail patients? Don't be nervous. Do be careful. Sept. 3, 2001
E-mail etiquette. Apr. 23, 2001
Secure messaging: Much more than e-mail. The Connected Physician (supplement), Fall 2000

Handheld devices Palm, Pocket PC or pen tablet? Hard facts about hardware. The Connected Physician (supplement), Spring 2002
Load 'em up: PDA software worth looking at. The Connected Physician (supplement), Spring 2002
How the device in your hand can put money in your pocket. Dec. 17, 2001
Your ticket to fast, flawless prescribing. Oct. 23, 2000

Using the InternetHelp your patients surf the Net safely. Mar. 6, 2000

Setting up your own Web site Putting your practice online is easier than ever. Dec. 4, 2000

David Karp. Malpractice: Watch out for new-technology traps.

Medical Economics

2002;12.