Communications @ Risk

Despite living in a wired world, physicians have been slow to adopt e-mail as a way to interact with patients, although this may change as younger, more tech-savvy doctors join the profession.

Doctors may have good reasons to be wary, not only because time spent corresponding by e-mail takes away from more important professional activities and is not billable, but also because a text message or e-mail may be misinterpreted or be seen by unintended eyes, thus expanding a physician’s potential legal liability. For those who do decide to use electronic means to communicate with patients, prior planning and the use of certain precautions may allow them to limit their exposure to liability while meeting the needs of the tech savvy modern patient.

Medical Malpractice Insurance Coverage Concerns

Does a medical malpractice insurance policy cover claims arising from a doctor’s use of e-mail? As with many other things, determining whether claims from e-mail communication are covered by a doctor’s medical malpractice policy is fact-specific. Any form of communication, whether texting or even using social networking sites like Facebook, could trigger a covered claim, as long as the communication is made in the process of providing “professional services” as defined by most medical malpractice policies. Whether or not an insurer would provide or contest coverage under medical malpractice insurance depends on the allegations contained in the claim.

Bruce Whitmore, Executive Director at Chicago’s Creative Risk Strategies, says that he has seen no insurance applications inquire about e-mail communication, although some insurers currently ask about answering machine messages during loss prevention calls and audits. Whitmore does, however, expect insurers to start asking more about electronic communication. He cautions, “Insurance underwriters who use e-mail day-in, day-out, may have a hard time drawing any clear conclusions about physicians and risk of e-mail use based on checking a few boxes on application.” He concedes that e-mail could become a controversial issue in medical practice risk analysis and insurance underwriting.” LinkedIn discussion on forum, “Medical Malpractice Insurance Professionals.”

Risk Management Steps

Physicians can manage the risks of using electronic communications in three primary ways.

1. Avoidance. Perhaps the primary technique physicians utilize currently is this one. These physicians simply do not adopt the practice of communicating with patients by e-mail or text. This forecloses the risk of professional liability claims from electronic communication. It may, however, run certain business risks. The latter include being left behind by forward-thinking medical practices that let patients communicate in this convenient way. Patients may find that practices allowing e-mail communication with the doctor’s office are more user-friendly and more worthy of their business.

2. Insurance. Another technique for managing risk is through professional liability insurance which, in the medical realm, is better known as medical malpractice coverage. It remains to be seen whether medical malpractice underwriters will begin asking on applications whether physicians communicate with patients via e-mail. This might signal a perception by insurers that this is an undesirable risk feature. Medical malpractice policies may cover liability claims from e-mail, but physicians and their legal advisers should carefully read their policies to see if there are any exclusions that could apply. (Caveat: not every claim arising from electronic communications between patients and doctors may be covered by medical malpractice insurance. A key issue is whether or not electronic communication claims flow from a professional medical exchange. For example, if a physician e-mails a patient intending to write, “Take a dose of Valium 1X every 4 hrs,” but instead writes “4X an hour,” and the patient overdoses, that claim would arise from a professional activity. If, by contrast, a physician e-mails or texts a patient an inappropriate message laden with sexual innuendo, and a patient claims harassment or mental anguish, that may be excluded by a medical malpractice insurance policy.)

3. Loss Control. Perhaps the most fruitful risk management approach is loss control: reducing the frequency or severity of claims arising from physicians using e-mail. This includes high- and low-tech remedies to ensure accuracy, timeliness and precision in communication between patients and healthcare providers.

Some Loss-Control Measures to Consider

What loss-control measures represent sound risk management steps? Here are five: