, however innocuous and casual the conversation may seem, writes New York healthcare attorney Lee Johnson in Medical Economics. Consider this case:
In one case, an interventional radiologist gave advice to a 65-year-old woman who had selected the "contact us" option on the practice's website. The woman had written that her doctor recommended a vertebroplasty because radiographs of the lumbar spine showed diffuse osteoporosis and a collapsed third lumbar vertebra. The radiologist responded that he, too, recommended the procedure. An orthopedic surgeon performed the vertebroplasty, complications ensued, and the patient became paraplegic. The resulting lawsuit alleged that the radiologist had "negligently advised" the woman to undergo vertebroplasty "without conducting physical examination and medical testing that would have disclosed the presence of metastatic cancer." [...]
Ultimately, the interventional radiologist mentioned earlier dodged a bullet when the plaintiff's attorney decided his case would be stronger if he focused exclusively on the orthopedic surgeon.
But the lesson remains: When advice is offered via e-mail, a duty may be created and there will be a written record of how that duty was discharged.
I wrote about in NRM in June. Liability issues are legion, Bill Pascal, the CMA's chief technology officer, told me, but he said there's an even more serious explanation for Canadian physicians' reluctance to use email with their patients:
There are very few doctors that are emailing with their patients for one simple reason: most docs are under a fee-for-service structure, and they cant be compensated for providing care through any channel -- patients have to go into the office. The issue is that we don’t have the policies in place that allow [email communications] and encourage it.
I do know [remuneration for email has been discussed] in some of the negotiations between the divisions in the CMA, the 12 regional associations. It is through those levels that negotiations of what gets paid for and not paid for through fee-for-service is negotiated. Up until now, things through the e-channel, as I call it, are not built in. Even telehealth is usually not covered under fee-for-service -- just for people on a salaried basis. One of the things we are looking at now is if we can start to utilize the e-channel in a way that supports care and in a way that doctors and institutions can get compensated for.
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