Online Care: promises and perils.
The project is spearheaded by the Hawaii Medical Service Association (Blue Cross Blue Shield of Hawaii, at consumersonline.hmsa.com), the state's largest health care insurer, in collaboration with Boston-based American Well Inc., a doctor-owned company specializing in medical communication software.
Participating doctors will have ready access to patients' electronic medical claims summary, as well as information that patients may have compiled in their Personal Health Record using Microsoft's HealthVault. Doctors will be paid a small fee ($25.00) for each online patient encounter. Thus far, 140 doctors have signed on, and the Online Care program will provide them with specific malpractice insurance coverage for any ensuing liability.
Lack of access to both primary care providers and specialists is a problem in Hawaii, which has 1 million residents scattered over several islands. Unfortunately, some of the most needy, including the aged, the poor, and the less educated, may not be computer literate or have ready access to a computer. Online Care is considering adjunctive measures such as patient education, free computer kiosks, and Internet assistance from pre-identified family members, neighbors, or friends. After an initial enrollment, patients can also communicate by telephone instead of interacting online.
Substantial savings from a reduction in visits to physicians' offices and emergency departments may offset and eventually surpass the start-up and maintenance costs of the program. Moreover, timely professional advice can forestall medical complications and costs resulting from patient ignorance, delay, or neglect.
Quality of care is ultimately the key issue. Is the absence of a face-to-face professional encounter inimical to good medical practice? After all, medical students are taught the importance of obtaining a complete medical history and physical examination before daring to ponder diagnosis, prognosis, or treatment. Online Care necessarily dispenses with the physical exam and relegates communication to keyboard strokes or video or voice cues. The patient may be a complete stranger, so the social and family context is unknown. These handicaps may reduce Online Care's utility to generic advice or reassurance, but quality of care need not be an issue if both physician and patient recognize the limitations inherent in any online interaction.
Outsourcing to cheaper and less-qualified providers, including non-MD physician extenders, may be a concern, and state licensure laws must continue to guard against this. The current law in Hawaii restricts payment for medical interactions on the Internet to parties with previously established doctor-patient relationships (although the law allows that relationship to be established online).
The legal issues of privacy and confidentiality involve all aspects of medical communication, including e-mail and other Internet interactions. A provider who is found in violation of written standards under the law is subject to civil suits as well as civil and criminal liabilities under the federal Health Insurance Portability and Accountability Act (HIPAA). Conscientious adherence to the privacy guidelines and procedures of an established program such as Online Care should keep a doctor out of legal quicksand.
Still, there is the possibility that injured parties may allege medical malpractice for online acts or omissions. Substandard conduct includes wrong advice, untimely diagnoses and referrals, treatment errors including prescription errors, and failure to return calls or respond to electronic messages including e-mails. In the absence of face-to-face interaction, practitioners should be particularly attentive to patient complaints of abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor (www.thedoctors.com/KnowledgeCenter/PatientSafety/articles/CON_ID_000334).
The determination of legal duty is a prerequisite to a successful negligence lawsuit, and a plaintiff could argue that a professional doctor-patient relationship had been formed in cyberspace. In analogous situations, such as medical advice given over the telephone, courts have sometimes ruled in favor of plaintiffs despite the absence of face-to-face interaction. Hawaii recently permitted telehealth services to be reimbursable, despite the absence of face-to-face contact (HRS [section]431:10A-116.3[a]). Under this law, an Online Care encounter would imply a doctor-patient relationship, with the corresponding legal duty of due care.
The "medical treatment" most likely to be given over the Internet is medical advice or prescriptions (Online Care disallows prescriptions for controlled substances in accordance with current Hawaii law). The physician should verify that the patient understands what medical advice is being proffered, including the alternatives and material risks. Claims asserting lack of informed consent are a part of virtually every malpractice lawsuit, and "cyber-consent" may yet emerge as a legal minefield.
BY S.Y. TAN M.D., J.D.
DR. TAN, professor of medicine and former adjunct professor of law at the University of Hawaii, directs the St. Francis International Center for Healthcare Ethics.
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|Publication:||Internal Medicine News|
|Date:||Mar 15, 2009|
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