Patient-Physician Electronic Communication

Subject: Patient-Physician Electronic Communication 

Presented by: Philip Suarez, MD, Chair 
TMA Council on Communication    

Referred to:  Reference Committee on Socioeconomics

At TexMed 2001, the TMA House of Delegates adopted the association's first set of guidelines for patient-physician electronic communications. They were developed by the Task Force on Patient Medical Information and Privacy and Physician Use of Information Technology, based primarily on those developed by the American Medical Association (AMA) House of Delegates at its interim meeting in December 2000. Because the AMA guidelines underwent regular and inconsistent modifications, the TMA House of Delegates at TexMed 2002 adopted BOT Report 13-A-02, which included the following recommendations.

1. That the Council on Communication develop substitute, broad guidelines (such as Medem's) for patient-physician electronic communication that will remain relatively constant, and submit them for consideration by the House of Delegates at A-03.

2. That the Council on Communication provide members with ongoing access to specific recommendations and suggestions from a wide variety of medical sources.

Need for Guidelines  

As the number of U.S. adults with access to the Internet has grown, so too has the proportion of persons who want to communicate with their physicians online. A 2002 Harris Interactive survey found that 90 percent of those online would like to be able to communicate with their physicians online. "More than two-thirds of them would like to be able to do each of the following: ask questions where no visit is necessary (77 percent), fix appointments (71 percent), refill prescriptions (71 percent), and receive the results of medical tests (70 percent)." In addition, 37 percent said they would be willing to pay out-of-pocket for this privilege. "And most of those online say they would be influenced in their choices of doctors and health plans if some of them made online communications possible and others did not." [i] These figures track and mirror the findings of a 2001 Jupiter Media Matrix, Inc. report. [ii]  

On the other side of the modem, the AMA Study on Physicians' Use of the World Wide Web found "one-quarter of physicians report they use the Web to send (23 percent) and receive (26 percent) e-mails to patients." [iii] Looking to the future, 40 percent of physicians surveyed by Jupiter Media Matrix said they have high interest (14 percent) or some interest (26 percent) in communicating with their patients via e-mail.

Several researchers have looked at why physicians have not climbed aboard the bandwagon more quickly. "The answer comes down to physicians' fears about three issues: potential security breaches, liability exposure - and 'wasted' time. The validity of such concerns can't be denied. But experts say the first two can be addressed with proper system design and management of patient expectations. The third has proved largely unfounded. In fact, most physicians who were early users of e-mail with their patients have reported time and efficiency savings. What's more, there have been no reports of physicians' being flooded with inappropriate messages from patients." [iv]  

As mentioned above, the TMA and AMA have developed guidelines in recent years for physicians who wish to communicate electronically with their patients. The council believes that these guidelines have been too detailed and thus subject to frequent change. The council has previously reviewed other guidelines, such as those from Medem, the American Medical Informatics Association, and Kaiser Permanente. The categories of information that all of these guidelines tend to cover include:

• Definition : What is "patient-physician electronic communication"? What is and is not covered by the guidelines?
• Content : Issues related to acceptable topics discussed electronically, tone, standard items in each communication, etc…
• Policies and practices : Issues related to how the practice receives, views, responds to, and stores electronic communications. Issues related to patient informed consent.
• Security and technical : Issues related to encryption, authentication, and privacy of communications.
• Financial : Issues related to reimbursement for electronic communications.
• Legal : Issues related to state and federal laws or rules regulating electronic communications.

The council chose to use as a starting point for the broad guidelines, the eRisk Working Group on Healthcare's Guidelines for Online Communications, November 2002 revision. The eRisk Working Group is a consortium of professional liability carriers, medical societies, and state board representatives convened by Medem. The council reviewed the eRisk Working Group guidelines and modified them to better fit Texas law and TMA policy.

Recommendation: That the Texas Medical Association adopt the following guidelines for physicians to use in electronic communications with patients.

These guidelines are not meant as legal advice and providers are encouraged to bring any specific questions or issues related to online communication to their legal counsel.

The legal rules, ethical guidelines, and professional etiquette that govern and guide traditional communications between the physician and patient are equally applicable to e-mail, Web sites, list serves, and other electronic communications. However, the technology of online communications introduces special concerns and risks:

1. Security. Online communications between physician and patient should be conducted over a secure network, with provisions for authentication and encryption in accordance with eRisk, HIPAA, and other appropriate guidelines. Standard e-mail services do not meet these guidelines. Physicians need to be aware of potential security risks, including unauthorized physical access and security of computer hardware, and guard against them with technologies such as automatic logout and password protection.

2. Authentication. The physician has a responsibility to take reasonable steps to authenticate the identity of correspondent(s) in an electronic communication and to ensure that recipients of information are authorized to receive it.

3. Confidentiality. The physician is responsible for taking reasonable steps to protect patient privacy and to guard against unauthorized use of patient information.

4. Unauthorized access. The use of online communications may increase the risk of unauthorized distribution of patient information and establish a clear record of this distribution. Physicians should establish and follow procedures that help to mitigate this risk.

5. Informed consent. Prior to the initiation of online communication between physician and patient, informed consent should be obtained from the patient regarding the appropriate use, limitations, and risk of this form of communication. Physicians should consider developing and publishing specific guidelines for online communications with patients, such as avoiding emergency use, heightened consideration of use for highly sensitive medical topics, appropriate expectations for response times, etc. These guidelines should become part of the legal documentation and medical record.

6. Doctor-patient relationship. The use of online communication between the physician and patient is appropriate only after the establishment of the traditional patient-physician relationship.

7. Medical records. A record of online communications pertinent to the ongoing medical care of the patient must be maintained as part of, and integrated into, the patient's medical record, whether that record is paper or electronic.

8. Licensing jurisdiction. Online interactions between a physician and a patient may be subject to the licensing requirements of the Texas State Board of Medical Examiners. Communications online with a patient outside of the state in which the physician holds a license may subject the physician to increased risk.

9. Commercial information. Web sites and online communications of an advertising, promotional, or marketing nature may subject physicians to increased liability, including implicit guarantees or implied warranty. Misleading or deceptive claims increase this liability.

10. Highly sensitive subject matter. Physicians should advise patients of potential privacy risks associated with online communication related to highly sensitive medical subjects, such as issues of mental health, substance abuse, etc. Physicians should avoid active initial online solicitation of highly sensitive topic matters.

11. Emergency subject matter. Physicians should specifically advise patients of the risks associated with online communication related to emergency medical subjects such as chest pain, shortness of breath, bleeding during pregnancy, etc. Providers should not permit the use of online communication to address topics of medical emergencies.

Guidelines for Fee-Based Online Consultations  

Definition : A "fee-based online consultation" is a clinical consultation provided by a physician to a patient using the Internet or other electronic communications network in which the physician expects payment for the service.

An online consultation that is given in exchange for payment introduces additional risks. In a fee-based online consultation, the physician has the same obligations for patient care and follow up as in face-to-face, written, and telephone consultations.

In addition to the guidelines stated above, the following are additional considerations for fee-based online consultations:

1. Pre-existing relationship. Online consultations should occur only within the context of a previously established doctor-patient relationship.

2. Informed consent. Prior to the online consultation, the physician must obtain the patient's informed consent to participate in the consultation for a fee. The consent should include explicitly stated disclaimers and service terms pertaining to online consultations. The consent should establish appropriate expectations between physician and patient.

3. Medical records. Records pertinent to the online consultation must be maintained as part of, and integrated into, the patient's medical record.

4. Fee disclosure. From the outset of the online consultation, the patient must be clearly informed about charges that will be incurred, and that the charges may not be reimbursed by the patient's health insurance. If the patient chooses not to participate in the fee-based consultation, the patient should be encouraged to contact the physician's office by phone or other means.

5. Appropriate charges. An online consultation should be substantive and clinical in nature and be specific to the patient's personal health status. There should be no charge for online administrative or routine communications.

6. Identity disclosure. Clinical information that is provided to the patient during the course of an online consultation should come from, or be reviewed in detail by, the consulting physician whose identity should be made clear to the patient.

7. Available information. Physicians should state, within the context of the consultation, that it is based only upon information made available by the patient to the physician during, or prior to, the online consultation, including referral to the patient's chart when appropriate, and therefore may not be an adequate substitute for an office visit.

8. Online consultation vs. online diagnosis and treatment . Physicians should attempt to distinguish between online consultation related to pre-existing conditions, ongoing treatment, follow-up questions related to previously-discussed conditions, etc., and new diagnosis and treatment. New diagnosis and treatment of conditions, solely online, may increase liability exposure.

Ongoing Access to Specific Recommendations and Suggestions  

The council has and continues to meet the second recommendation of BOT Report 13-A-02 through the use of the TMA Web site and articles in Texas Medicine , Action , "News of Interest," and other TMA publications. Recent and ongoing examples include:

• An October 2002 Texas Medicine article on how Texas physicians are using the Internet to provide online consultations with patients. This article includes an interview with Philip Suarez, MD, and one of his patients and describes, in depth, Medem's Online Consultation service.
• An article on the TMA Web site titled, "The Good, the Bad, and the Ugly of Patient-Physician E-Mail Communication ."
• Links to the following materials from the TMA Web site:
• AMA guidelines for patient-physician e-mail communication,
• American Medical Informatics Association Guidelines for the Clinical Use of Electronic Mail With Patients,
• Medem's eRisk Guidelines for Physician-Patient Online Communications, and
• Texas Medical Board's "Policy Statement on Internet Prescribing."

• Extensive information regarding Medem and its services, including Online Consultation and Secure Messaging.