By: Joseph McMenamin, MD, JD

[Ed. We are excited to present this guest post by Dr. McMenamin, who was a practicing emergency physician before turning his sights to the practice of law. He is currently a partner at McGuireWoods LLP specializing in health-related litigation.]

A medical malpractice plaintiff must meet four tests: a duty, breach of that duty, causation (the “so what?” question), and damages.  A failure to prove any one of these elements is fatal to the plaintiff’s case.  In mHealth, the most complex of these may be the one that, in conventional care, is the simplest: duty.

In most health care, it’s usually pretty clear when I am your doctor and you are my patient.  Once that’s established, I owe you a duty –  a duty that, if breached to your detriment, you can sue over.  We may disagree about the extent of that duty, and whether, on the occasion in question, I complied with it, but the existence of the duty itself is often non-debatable.  Either I’m your doctor or I’m not.

Suppose, though, I maintain a Web site dedicated to a discussion of the diagnosis and treatment of lupus, and some of the information presented is out-of-date.  Can a reader claim that, in reliance upon my Web site, he was harmed, and is thus entitled to compensation?  If I write a blog to discuss medical topics, does my reader become my patient?  What if, in conformity with the 140-character limitation imposed by Twitter, I omit a discussion of subtleties that in a conventional medical text would be spread over 3 or 4 pages of dense print?  In general, if no doctor-patient relationship exists between my reader and me, I cannot breach the standard of care; if one does, I can.  The question thus becomes: when does that relationship arise?

Whether a physician-patient relationship exists is often specific to each jurisdiction.  Physical contact between doctor and patient may or may not be required.  A phone call may suffice, even if physician and patient have never previously spoken, or even if a doctor gives advice solely through another doctor or a PA.  In a few cases, where a consultant advises a referring physician, the doctor-patient relationship may exist even where the consultant was not on call.  Merely serving as the on-call attending, however, does not create the relationship if the attending was never consulted about the patient.  Yet an on-call physician who undertakes to diagnose a case over the phone may have implied consent to establishment of a professional relationship with the patient. 

Like so much else in malpractice, the factors courts consider in phone consult cases vary with the jurisdiction.

Creating the relationship generally requires that, on the basis of the information conveyed, the caller changed his behavior.

Ordinarily, no relationship arises where a caller merely asks for an appointment.  Some of the factors discussed in the published cases analyzing whether a physician-patient relationship has arisen include whether the consultant has met the patient, or knows the patient’s name; whether the consultant reviewed the patient’s chart; whether the consultant examined the patient; and whether the consultant accepts a fee for his services.

How will all this be applied to tweets or blog posts or email?  It would be helpful if we had some case law to guide us, but at present there is little or none.  Of the several malpractice cases that have so far arisen in a telemedicine context, all that I am aware of have been settled with confidentiality clauses that leave the rest of the world in the dark, although probably beneficial to the parties.  We are thus left to reason from analogy, and, to some extent, to guess.

A good rule is that a general discussion of a topic, even if erroneous, is unlikely to be actionable.  The more the discussion is patient-specific, however, the greater the likelihood that a relationship will be deemed to exist, and so the greater the likelihood that a duty will be found. 

Based on the telephone cases, if the doctor knows the patient’s name, or has access to his old records, or has examined the patient, or is paid a fee, the probability increases that a duty will arise.

So, a Wikipedia-style discussion of chest pain, even if riddled with errors, may not give rise to a viable claim.  A response to a specific question from an identifiable patient, even if substantially accurate but arguably oversimplified in its brevity, might give rise to litigation.  Of course, the mere fact that a plaintiff is willing to file suit papers does not mean that she’ll win, or that the doctor has done anything wrong.  The goal, though, is to avoid suit in the first place.

As for advice, it would be wise to issue disclaimers to the effect that a blog post, for example, is not intended to nor does it create a physician-patient relationship with a reader and to emphasize that the post is not intended to provide the definitive statement on the subject addressed.  It may be prudent to emphasize that such a post is no substitute for professional advice, and especially in emergencies should not be relied upon before or to the exclusion of an in-person evaluation.  As a physician, you should be careful not to overstate your capabilities in any advertising, lest you put yourself at risk for a claim.

None of this is necessarily intended to discourage physicians from using new tools and media.  It would be prudent, however, to do so with some attention to the law in your (and your patient’s) jurisdiction with respect to how a doctor-patient relationship is established.

Note: Although it is hoped that this post will prove useful to the reader, it is not offered as an exhaustive discussion of the topic, nor as legal advice. The post does not establish, nor is it intended to establish, an attorney-client relationship with anyone.  It represents the views of the writer, and not necessarily those of McGuireWoods LLP nor of any of its clients.