TY - JOUR
AU - Spielberg, Alissa R.
AB - Abstract Increased use of e-mail by physicians, patients, and other health care organizations and staff has the potential to reshape the current boundaries of relationships in medical practice. By comparing reception of e-mail technology in medical practice with its historical analogue, reception of the telephone, this article suggests that new expectations, practice standards, and potential liabilities emerge with the introduction of this new communication technology. Physicians using e-mail should be aware of these considerations and construct their e-mail communications accordingly, recognizing that e-mail may be included in the patient's medical record. Likewise, physicians should discuss the ramifications of communicating electronically with patients and obtain documented informed consent before using e-mail. Physicians must keep patient information confidential, which will require taking precautions (including encryption to prevent interception) to preserve patient information, trust, and the integrity of the patient-physician relationship. E-MAIL and the Internet have already begun to transform the boundaries of communication within the medical context. More than a simple means of transferring information, e-mail has the potential to "induce cultural changes in the delivery of care even more revolutionary than any restructuring that is going on today."1 In fact, e-mail facilitates communication among all participants in the health care delivery system. Physicians can interact with patients, consult with colleagues, and communicate with insurance industry representatives, pharmacies, and hospitals. E-mail can strengthen the level of intimacy shared between physician and patient, making more accessible their respective private spheres. Patients, otherwise reluctant to raise sensitive topics in person or seeking only a quick opinion between office visits, may find e-mail inviting. E-mail may also appear to be a preferable alternative to endless telephone messages ("phone tag") between office and patient. Increasingly aware of patient interest in electronic communication, most hospitals and insurers and some physician practices have established Internet Web sites, many of which allow direct electronic contact with their offices. Yet in contrast to other industries, the medical profession has been slow to embrace e-mail and the Internet as communication tools.2 Eclipsed by the promise of rural access to videoconferencing in medical consultation, the comparatively mundane and even routine electronic message has received scant attention in the literature of telemedicine or electronic data privacy,3 even though telemedicine has generally been defined to include telephone, video, and electronic transmissions via telephone lines or digital connections.3 Unlike other forms of telemedicine, however, e-mail has the potential to reach every physician and in turn to alter all of a physician's subsequent relationships. Perhaps most disconcerting is the relative ease with which it is used, thus generating so little critique. Because of its presumed parallel with the telephone, e-mail has been easily absorbed by the general public (and those physicians who use it), thereby masking its potential for reconstituting clinical relationships. E-mail, however, must be considered seriously not only as a type of telemedicine but also and more importantly as a precise form of communication and documentation within the patient-physician relationship, with its own particular social, legal, and ethical consequences. While electronic communication can extend the dimensions of efficient, leisurely convenience and personal connection within the patient-physician context, its use requires further analysis. This article examines the reception of e-mail by the medical community in light of its acceptance of other, already existing modes of communication. Comparing the historical context of communication technologies within medicine, this article examines the extent to which the telephone and e-mail are closely related. Further, it discusses the legal and ethical issues related to e-mail use, delineating those ethical and legal standards most directly applicable to medical practice. E-mail in the medical context not only generates liability concerns but also raises serious questions about privacy, confidentiality, authenticity of authorship, and patient consent. Finally, it suggests protections for physicians and patients in communicating across lines and links. Historical context Early Communication Prior to the invention of the telephone, physicians and patients communicated in person, though an intermediary, or through writings. During the era of decentralized medicine in the 17th and 18th centuries, a physician, acting alone, rendered diagnoses on the basis of patient narrative rather than physical examination.4(pp144-145) Accordingly, with this diagnostic standard, face-to-face encounters were no more (or less) reliable than letters or messages relayed from a distance.4(p196) As practice standards shifted, during the mid-19th century, toward an increased reliance on physical symptoms and corresponding pathological, auscultatory, and histological data, physicians required actual physical examinations to develop diagnoses for their patients.5(pp54-55) At the same time, the development of practice specialization and hospital-based disease management necessitated increased communication between physicians for case consultation.4(pp196-197) With this increasingly centralized model of medical practice, patients needed to call on physicians to travel to their homes, at the patients' expense. Even when patients sought a physician's services, they often had to wait or search for a physician who was traveling on another case.5(pp68-69) Innovations in communication and transportation enabled physicians to practice medicine over long distances while maintaining their ties to hospitals and other physician-specialists. By 1843, the introduction of the telegraph enabled physicians to transfer information to colleagues and patients.4(p198) The growth of cities, with expanded transportation, further enabled physicians to practice medicine over large territories. Telephone The invention of the telephone in 1876 and its rapid network integration, however, marked a radical change in patient access to individual physicians. Patients immediately used the telephone to contact physicians in emergencies.6(p161) Indeed, the first telephone exchange connected several Connecticut physicians to a central drugstore.5(pp 69-70) Such pharmacy-based telephone services proliferated, encouraging patients to rely on the pharmacies to store and relay messages for individual physicians.7(p50) While most industries still relied on postal mail or telegraph for transacting business, medical professionals were at the vanguard, becoming predominant users of the new technology.4(p198)6(p160) From its inception, the telephone engendered concerns about privacy and security.7(pp71,225,241) Its intrusiveness into daily living and personal space made the telephone particularly vexing to early users who complained of solicitations, eavesdroppers, and even "wire-transmitted germs."7(p26) Many feared that conversations held over the telephone would not be kept private; eavesdroppers, government officials, operators, and even those in the same room may have been listening in. Almost immediately, "soundproof conversation rooms" and "special operators" were instituted.7 As pharmacies offered public telephone service (followed by pay telephones), people began to expect immediate telephone contact with professionals. One physician in 1878, acknowledging the prevailing privacy concerns, placed an advertisement informing "his patients and the public that he may be summoned or consulted through the telephone either by night or day. The communication is . . . absolutely private and confidential."8 With party lines and operator-assisted calls, callers could not expect meaningful privacy, unless special precautions were announced. Yet, by the mid-20th century, individual private telephone lines would enhance expectations of privacy. As the telephone became embedded within American culture, patients expected their physicians to be accessible at any time for almost any reason.4,7 Physicians felt vulnerable, even "slaves," to a potential barrage of calls from anxious patients.4(p198) With increased reliance on telephone consultations, however, physicians began to use the telephone to their advantage, screening potential visits and using intermediaries to assess the priority of the calls.7(p176)9 Because telephone service proliferated so rapidly, urgent care became merely one aspect of medical telephone use—physicians readily used the telephone for patient advice and diagnosis and for consultation with other physicians.4(p198)7(p176) Nevertheless, many practitioners believed that practicing medicine over the telephone compromised the moral integrity of the profession4(p199) and promoted substandard care, with patients forgoing necessary physical examinations and misinterpreting muffled prescriptions.7(p176) Despite these concerns, physicians increasingly felt morally obligated to be available by telephone.7(p176) Some even advocated for payment for a physician's time spent making patient calls.7(p176) Although patients and physicians recognized potential problems with confidentiality and care over the telephone, most also conceded that the telephone had dramatically altered the patient-physician relationship by making private what was once public.7(p265) Patients could, by the mid-20th century, call their physicians from the privacy of their own homes, on private lines (often with a physician's personal assurance that someone would be on call to respond to their immediate medical needs). Increased private telephone use raised the expectation of privacy in the patient-physician relationship. Reception of e-mail and internet by physicians and patients In marked contrast to the almost immediate acceptance of the telephone by physicians and patients over a century ago, contemporary practitioners have been reluctant to use electronic communication in their practices. Partly because the telephone has satisfied the need for immediate communication, particularly during emergencies, e-mail and Internet interaction may not seem critical to medical practice. Still, with Internet access increasing to upward of 60 million people,10 its use in the health care context cannot be ignored. Despite patient interest in using e-mail—perhaps as high as 50—only a few "early adopter" clinicians have experimented with electronic communication.11 Prevailing Response to E-mail and Internet Currently, physicians are approaching the Internet with caution, particularly if it is being used for patient-related data. According to a 1997 survey, the Internet's primary function for practitioners is clinical research, followed by physician-to-physician communication.12 Clinicians display only moderate willingness to correspond with or about patients electronically.11 Anecdotal evidence suggests that the primary reason for physicians' reluctance to communicate by e-mail is their concern over the volume of potential messages they might receive.11,13-15 Echoing their early counterparts who feared expanded telephone access, many physicians dread being barraged by e-mail.12 Physicians have generally been protective of their patients' privacy interests. Indeed, many practitioners have expressed doubts over the security of e-mail for transmitting sensitive personal medical data.10,15 In response, several medical publications raise the possibility of protecting patient-related messages and data with encryption software.10,16 Such software scrambles the message in transit and requires an authentication code for both transmission and reception. Despite the accessibility of this technology, physicians have not yet used electronic communication widely. Trailblazers: The Anecdotes A few practitioners, however, have embraced electronic communication and have described its benefits to reporters.14,15,17,18 These e-mail proponents uniformly praise electronic communication as an efficient means of communication that actually decreases time spent answering patients' questions by telephone. Moreover, e-mail allows for a more detailed and considered response to a patient's query than a telephone call generally permits. Practitioners who use e-mail do not report a deluge of messages; rather, they appreciate the chance to respond to messages at their own convenience and, in turn, report a greater sense of control of their time. Some physicians point out that electronic communication enriches the medical record.14,15,18 Specifically, one physician notes that she has "documentation of the interaction . . . that's often very difficult when you're taking calls on the fly."15 Likewise, another physician sharpens the point from a legal perspective, asserting, "anything I do get I can print, sign and date, and place in their records. That's strong documentation in the event of a malpractice suit."18 Physicians who regularly use e-mail acknowledge privacy concerns but have addressed them predominantly by altering content rather than by enhancing the technology with encryption. For example, one physician advises patients that e-mail transmitted to a workplace address might be reviewed by an employer, another maintains a policy of self-imposed discretion when he discusses sensitive subjects such as human immunodeficiency virus (HIV) infection,15 while other practitioners only encrypt e-mail for HIV-positive patients.18 Cost-effectiveness has also been advanced as a compelling incentive to use e-mail.12,18 Not only might e-mail save patients office visit time and co-payment cost, but also, some note, e-mail may enable physicians to better manage their patients out of the office, filling additional available time with more patients.18 Moreover, as proposed previously for telephone consultations, some have even suggested that physicians will eventually be permitted to charge and be reimbursed for time spent attending to e-mail consultations.19 Although no formal studies yet relate cost-efficiency to e-mail use, an increased use, if not requirement, of e-mail is predicted, particularly in the managed care setting, with the high volume of required referrals and approvals.18 Electronic communication also occurs via numerous hospital-, health plan–, and physician practice–operated Web sites. Although it is not known precisely how many physician practices support Web sites, the number is certain to rise rapidly. According to my informal review of currently available physician-operated Web sites, a physician practice Web site can include automatic e-mail to the office generally or to an individual practitioner; electronic patient history forms for e-mail return to the office; designated e-mail for scheduling, referral, camp forms, or patient medical concerns addressed by means of a pictorial "point and click" method; posted information on specific health topics; and hyperlinks (links) to sites for health plans, pharmaceutical companies, general health information, medical or child safety product suppliers, and hospitals. Additionally, some physicians have established Web sites for the purpose of paid online diagnosis.20 Even though some of these sites invite transmission of specific, identifiable patient data, only a few physician-operated sites are protected by secure servers or encryption technology. Many other unsecure medical Web sites encourage anonymous (or pseudonymous) patient communication with an anonymous expert or interaction among Web site users forming self-help groups.11 The proliferation and popularity of such sites indicates patients' desire to share certain personal information, concerns, and fears, even if they are reluctant to do so in person with their own physician. Legal precautions and considerations for ethical e-mail communicationand web site maintenance E-mail security echoes other modern communication technology, such as fax machines, cellular or cordless telephones, answering machines, and voice mail. E-mail, like these other technologies, can be misdirected, printed, intercepted, rerouted, and read by unintended recipients.21 Most importantly, just as voice mail may be maintained by a computer platform, e-mail may be stored indefinitely, even after its user deletes a message. Encryption software can act as a type of envelope, scrambling the message contents until the message is received by the intended addressee, and can provide a guarantee of a message's authenticity and integrity.21 Although additional technological safeguards can render e-mail relatively secure, technology alone cannot ensure its legal and ethical use in medical practice. By adhering to familiar legal and ethical standards in medicine, physicians will be able to incorporate appropriately these new electronic communication mechanisms. Use of electronic communication in medicine, therefore, implicates a variety of legal issues, including a physician's duty of confidentiality, a patient's right to informed consent, the components of a medical record, customary usage and practice standards, state licensing, and product endorsement. E-mail and the Physician's Duty to Maintain Patient Confidentiality Although an individual physician may have a legal obligation to protect the confidentiality of patient communications and information, the current health care system enables many others—outside the traditional patient-physician relationship—to access a patient's medical information.22 Payers, consulting physicians, and other health care workers may evaluate patient records. While the Supreme Court has hinted that medical information might deserve special protection because of its sensitive nature,23 there is currently no concrete legal standard for maintaining confidentiality and privacy in the medical record itself. Until new legislation emerges, the duty to preserve confidentiality resides with the holder of the record—which may not be limited to a single primary care physician alone.22 Accordingly, physicians who use e-mail must take reasonable precautions to avoid exposing patient-related e-mail to unauthorized entities. Moreover, physicians should caution patients against using e-mail for those matters that patients themselves would not wish to be available to payers, employers, and others. Since physicians hold an exclusive duty to protect the confidentiality of patient information known only to themselves, patients may still reveal confidences in person, "off the record." The information privacy protections, as noted above, are inadequate and provide no federal assurances that identifiable health information will be accurate, limited in disclosure to reasonable uses (eg, public health), or tracked to determine who may have seen it. As a result, patients must rely on state common law or statutory safeguards to enforce some medical records privacy, including breach of confidentiality, invasion of privacy, breach of contract, malpractice, defamation, and intentional infliction of emotional distress.22 In addition to attempts to recover damages, patients may also invoke state licensing standards that may restrict disclosure of medical information. Federal privacy protections over communications have evolved slowly and often in the criminal context. Although the telephone was immediately integrated into medical practice and soon thereafter into American culture, it was not until 1967 that American law affirmed a reasonable expectation of privacy in its use.24 The Electronic Communications Privacy Act (ECPA),25 originally enacted in 1986 to protect against government eavesdropping on telephone conversations, has been amended to include all forms of digital communication, including e-mail.26 The ECPA carries civil and criminal penalties for the unauthorized interception of messages in transit and illegal entry to stored data. The ECPA can only provide monetary remedies and punishment and cannot ensure that confidential data will not be seen by those willing to risk the sanctions. Despite the ECPA, which exempts employers and other private wire providers, courts have split over whether e-mail communications should be afforded privacy protections against government searches; privacy has been found only where the sender and recipient had exclusive access to their messages, with no risk that anyone else could retrieve the information.27 This situation is rarely present. In fact, employers own their e-mail systems and any messages sent or received over them.28,29 They have the right to review any e-mail messages and may be subject to disclosing their contents in legal proceedings. Likewise, providers of online services may also access messages of their subscribers without specific warnings. With these "reasonably anticipated" potential third-party intruders, it is difficult to argue that a one-on-one, private communication takes place over e-mail—particularly if the message must travel over the Internet, whose gateways are numerous and often unpredictable prior to transmitting a message. Yet there is a strong social expectation of privacy in e-mail, which could ultimately be legally enforced, if even at a reduced level of privacy. Attorney-Client Analogy Although no legal doctrine regarding e-mail in the patient-physician context has been articulated, courts and bar associations have begun to develop an analysis of e-mail confidentiality and responsibility in the attorney-client relationship. Because physician protection of patient confidences is analogous to the attorney-client privilege, though the privilege applies only within the context of a judicial proceeding, it is instructive to recognize the development of legal analysis of e-mail in the attorney-client setting. Because business use of e-mail has become increasingly accepted, it is not surprising that law firms recognized the uncertainty of electronically transmitted fiduciary confidences before medical practitioners did. In the attorney-client context, the law places an affirmative duty on both parties "to take measures sufficient to prevent a third party from gaining access to the communication."30 Cellular telephones, cordless telephones, and fax transmission have only just preceded e-mail in raising privacy and privilege concerns. While fax transmission has been readily accepted as privileged (if clearly identified), cordless and cellular telephone use continues to raise doubts, despite their privileged status in some jurisdictions.30 While in-house e-mail messages, sent over an internal electronic system, have been found to satisfy the attorney-client privilege, lawyer-client communications over the Internet may not satisfy that "reasonable precaution" standard (since there is a greater likelihood of interception and retention by unknown networks).29,31 In turn, many law firms have prohibited attorney-client communication by Internet-routed e-mail.29 Furthermore, the privilege may be waived if a communication is sent to a client via his or her employer's e-mail system.29 Also, a malpractice claim can arise when an attorney mistakenly forwards otherwise privileged e-mail to an unintended third party.30,32 States are still struggling to define the scope of the attorney-client privilege in regard to e-mail. Whereas some state courts and bar associations agree that e-mail should be considered private, other state bar association ethics opinions have required encryption to maintain attorney-client privilege.32,33 While lawyers are concerned with maintaining their clients' confidentiality and the corresponding evidentiary privilege, inadvertent disclosure of that information has not been central to the legal analysis of e-mail use in the attorney-client relationship. In the medical context, however, protecting patient privacy and confidentiality may be more acute because of the personal nature of the information and should in turn be at the center of the developing analysis of this technology. Physicians must use the "utmost effort and care" in safeguarding patient confidentiality and privacy, particularly with electronic communication.34 To ensure that patient information is not unnecessarily exposed, physicians should use encryption when communicating with or about a patient by e-mail, unless the patient has explicitly waived that option. Even though the communication may be legally protected by statute and testimonial privilege, the contents of the messages themselves may be exposed to others without encryption. Moreover, encryption authenticates the messages so there is no doubt over who the sender and recipient are. While encryption is imperfect and politically charged because of government proposals to retain the deciphering codes, it is currently the best method of protecting patient secrets electronically. Additionally, physicians should recognize that encrypted messages to patients using their workplace e-mail address may still be susceptible to an employer's view. Likewise, physicians who use e-mail provided by their employers will be subject to the same potential monitoring and exposure. More problematically, physicians who are employed by state public health agencies and other governmental bodies may find that their e-mail messages are subject to public records laws; accordingly, such practitioners will need to take additional steps to omit identifying patient data in e-mail messages. All physicians and health care practitioners should take precautions to avoid inadvertent forwarding, copying, and printing of e-mail that would otherwise further expose patient confidences. Informed Consent Patients should be informed of the potential risks and benefits of using e-mail. Although no current law specifically addresses e-mail consent, informed consent has been proposed for other aspects of telemedicine,35 and the American Medical Informatics Association supports e-mail consent in its guidelines.36 Physicians ought to engage in a dialogue with patients about preferred communication methods.36 Because the patient's own words will be stored, as on a tape-recorded telephone conversation, the patient must be given thorough information detailing potential ramifications of e-mail use, storage, and retention, prior to agreeing or declining. Although some policymakers recommend that future medical records privacy laws adopt a policy of providing information and offering the patient a chance to object,37 the personal, interactive nature of e-mail arguably demands a full written consent. Since this is the only instance when a patient's own words may be seen by other medical practitioners and payers, e-mail use should be agreed on in a formalized way, with patients delineating for the physician the parameters of acceptable e-mail for themselves. The consent form should reflect a variety of options,36 after a discussion of e-mail practices. Patients should understand who in the medical office has access to the physician's e-mail address and be assured that all communication from that address will indeed be written by the physician. The consent should note whether e-mail messages will ever be forwarded to others or in which instances the physician may e-mail third parties with information about a particular patient. Similarly, the consent should describe whether and in what medium e-mail messages are incorporated into medical records and retained, and what security measures are in place (eg, passwords, levels of authorization), if e-mail messages are stored electronically. That such e-mail messages may become a part of the record and in turn be seen by a wide variety of authorized users must be highlighted for the patient—a one-to-one electronic dialogue may have many legitimate eavesdroppers. Consents should also include general policies regarding security measures, avoidance in medical emergencies, vacation arrangements, usual response time, any prohibited topics, and intended patient e-mail address. Particular attention should be focused around whether any other person has access to messages at the requested address, whether by a shared addressee or employer. Because e-mail messages may be stored and read by employers, patients should be reminded that particularly sensitive medical information should not be sent through office e-mail even with encryption; in fact, patients may want to explore obtaining a more private e-mail address. Finally, patients must be given an opportunity to expressly prohibit identifiable, medically related communication from appearing in e-mail. E-mail is a Medical Record While telephone conversations are rarely recorded verbatim and often only documented by a few key words on a handwritten note, e-mail provides direct evidence of a patient-physician conversation. In this way, electronic communication methods have made physician recordkeeping easier.38 The e-mail message is itself a medical record; it should be stored electronically or printed in hard copy and placed in a patient's medical record. From a liability standpoint, this is necessary for the physician, because it accurately documents the communication; additionally, the patient may retain these communications. Just as standard practice requires the retention of any written notes and any information gathered related to patient history, complaints, diagnosis, and treatment, e-mail messages should be included in the patient's permanent file. Indeed, there is no advantage to simply deleting e-mail messages, as even deleted messages are recoverable (and legally discoverable). Because e-mail users often think of e-mail messages as short-term, immediate, and erasable, "[t]hey often put things . . . [on e-mail] which they would never put into writing on a real document."33 Thus, physicians must be aware of the permanence and significance of the e-mail documentation and draft messages accordingly. Physicians should communicate that understanding to their patients, as it may seem contrary to the pervasive casual approach to e-mail. Likewise, when sending a consulting e-mail to a colleague, physicians should refrain from mentioning several cases in one message and may want to submit unrelated personal messages under separate cover (by designating individual e-mail messages for different purposes). All patient-related e-mail messages should contain a notice at the top notifying readers that the message is a confidential communication.36 Correspondingly, physicians must be concerned with verifying and ensuring the authenticity of their electronic communications. Encryption provides one type of authentication, as it electronically identifies users. Still, physicians should require that any messages sent from a physician's personalized e-mail address (one that clearly denotes that the message was written by the physician, ie, uses the physician's name in the address) cannot be written by any other office staff. Each staff member should have a personalized address that makes the writer's identity clear to patients. Physicians should have the patient's e-mail address on file in the consent and should not accept as valid messages sent in a patient's name that originate from unknown e-mail addresses. Until electronic signatures and "cyber notaries" can verify that a particular person is in fact the originator of an e-mail message, these precautions will help to avoid misplaced reliance on fraudulent messages. Standard of Practice Electronic communication should not compromise a physician's judgment about what information is necessary to render an opinion or give advice. Indeed, "[a] partially informed decision can have devastating repercussions for the patient as well as the physician, and the easy use of electronic mail . . . should not lull a doctor into making professional decisions based on less information than he or she would require for a face-to-face encounter."38 Just as practice standards evolved for telephone consultation,39-41 clinical e-mail use will be governed by evolving norms, particularly regarding expected response time, since a physician can be found negligent for failing to return a patient's telephone call within a reasonable amount of time.42 Physicians who are not prepared to respond to e-mail regularly may decide not to offer it to their patients. Licensing and Regulatory Oversight Just as with the telephone's introduction into medical practice, electronic communication raises a series of jurisdictional and licensing issues.38 When physicians transmit e-mail messages across state lines for the purposes of rendering medical advice, they may be unwittingly practicing medicine without a license.3,43 Interstate consultation between physicians by e-mail may not fall within this precarious category (just as some telephone consultations have been exempted).43 Many states require licensure in their own state before an out-of-state physician may render care to patients electronically3,43 (eg, Alabama, Arkansas, Arizona, Connecticut, Florida, Georgia, Iowa, Indiana, Kansas, Massachusetts, Maine, Mississippi, Nebraska, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, and Virginia). Other states have proposed legislation that would allow for registration (already enacted in California) or limited licensure to facilitate out-of-state electronic medical care.3,43 Perhaps a federal initiative will emerge to streamline the current ambiguity in state-by-state licensing.43 However, medical licensure regulation has traditionally been left to the states, and it is unlikely that states will relinquish this authority easily. Interestingly, state medical boards have not promulgated regulations specifically related to e-mail in the patient-physician context. Federal regulation in telemedicine has occurred under the aegis of the Food and Drug Administration (FDA). The authority of the FDA may encompass both hardware and software necessary to effect telemedicine interactions by requiring that they undergo scrutiny as "medical devices."44 For example, a medical communications software package devised for patient use, which also facilitated medical decision making, could be subject to FDA approval. Web Site Maintenance Physician practice Web sites serve not only to advertise services but also to provide information and communication linkages. In this way, they are more than simple business cards or practice brochures and may be construed as a form of advertising, subject to regulation. While physician advertising is regulated by state licensing agencies, maintaining a Web site may implicate other legal authorities, relating to interstate practice, misrepresentation, negligence, and even antikickback statutes. Thus, special considerations, both high- and low-tech, should be taken when establishing medically related Web sites. To protect the privacy of unknown parties (potential and actual patients), physician practice sites should be constructed using secure servers that encrypt any messages transmitted directly from the site itself. Likewise, any sites that offer e-mail addresses should contain a written statement regarding e-mail security risks for those Web site visitors who might choose to use e-mail at another time over another server. Web sites should also delineate all potential uses of information collected about site visitors. The "linking" of one Web site to another has engendered the concept of a "web." However, providing links to other sites may imply an endorsement of the service, information, or products found on the linked site.45,46 This is problematic particularly because the content of a Web site can be constantly altered or updated, making monitoring of its contents very difficult. Although courts have not evaluated link liability, a recent proposal for adding a "hyperlink disclaimer" might offer some protection.45 Such a disclaimer would explain that the provision of links does not imply an endorsement of the information or products offered through the linked sites. Finally, practitioners should note that links to hospitals or health plans may be problematic, particularly when such links only provide information on a particular hospital or health plan. Antitrust, antikickback, and self-referral considerations, for instance, would likely preclude a hospital or health plan from arranging to establish a group of physician practice Web sites in exchange for a direct link from the practice sites to the hospital or health plan. Notably, statements claiming that medical advice or second opinions rendered via the Internet do not constitute the practice of medicine have yet to be tested for legal effect, though such disclaimers rarely insulate practitioners from the prevailing standards of care. Conclusion: e-mail ethics and policy considerations E-mail use suggests a profound new social dynamic within the patient-physician relationship. E-mail messages, like letters, cannot provide the subtle emotive cues often gleaned from vocal intonation and physical demeanor that aid in interpretation. Even so, they also have the potential to be highly specific, descriptive, and sometimes intimate portrayals of patient narrative and physician compassion. But in a tradition that values, even requires, human contact to engender trust and render medical diagnoses, e-mail may seem troublingly impersonal, mechanical, and inadequate. E-mail presents an opportunity for thoughtful comments and enhanced interaction—e-mail can be composed apart from a hectic schedule of face-to-face patient care. Yet it is easy to imagine that the potential routinization of e-mail in medicine will erode the numbers of lengthy missives from physicians to their patients, yielding brief notes concerning routine matters of patient care—especially if health plans ever require its use. This practice may be legal, efficient, and cost-effective, but it will reshape the way basic medical care is delivered; physicians and patients alike will revisit and perhaps alter their expectations of face-to-face or voice-to-voice medicine. E-mail communications are not merely virtual approximations of medical practice, they are very real exchanges of information, advice, and emotions. Medical practitioners should not conflate technological change with ethical impermissibility (or conversely, authorization to act other than according to good medical practice). The history of the telephone's acceptance by physicians presents one example of how new communication technologies are evaluated by the prevailing medical culture. While its history suggests similarities with the current electronic model, telephonic communication in medicine will neither determine the parameters of ethical e-mail practice nor predict the social adjustments implied by its use. Just because e-mail appears to temper the interpersonal qualities of past communication methods, electronic communication, as a novel technology, is neither inherently unethical nor readily acceptable for medical practice. Rather, the emergence of electronic communication launches a reexamination of the necessary values for good communication in the patient-physician relationship. A physician's availability, accessibility, and willingness to listen ground the trust on which the patient-physician relationship is based. E-mail facilitates these qualities by allowing for an exchange of letters with minimal time delay, encouraging patients to detail their concerns as they think of them. It also enables some reluctant patients to be more forthcoming and open if they prefer written, composed communicating over hurried or intimidating office experiences. Yet the provision of e-mail as an additional means of communicating may not be a satisfactory substitute for developing a more fully realized relationship that acknowledges patients' concerns and histories in person and respects patients' preferences for medical treatment, cultural values, and communication methods. Patient-physician trust also creates the moral space necessary to accommodate increasingly well-informed and curious patients who desire an enhanced role in determining their medical care. Patients also trust physicians who take seriously their duty to protect a patient's confidentiality and privacy. This duty might imply added security measures prior to e-mail use or at least a full discussion of the technological weaknesses of regular e-mail in protecting patient privacy. Likewise, as health information becomes a commodity over the Internet,47,48 protecting medically related communications takes on increased significance. Privacy measures for e-mail use are fundamentally similar to those required in other situations where health information is communicated—like asking a patient whether it is acceptable to place telephone calls to his or her workplace or taking reasonable precautions to avoid eavesdroppers when making patient-related telephone calls from a public place. Although the potential damage to the patient may be greater with e-mail, because of the potential wide dissemination of written information gathered by unlawful e-mail readers, the basic ethical duty is fundamentally the same regardless of the medium. The American Medical Association's Code of Medical Ethics specifically codifies these confidentiality duties and recognizes the need for patient awareness of computer-based sources of medical information.34 From a structural perspective, we might ask why physicians seem to leave their patients wanting more. Is this a phenomenon that implicates restrictions on physician availability because of managed care time constraints, or is this something that occurs independently as an artifact of the personal and professional nature of the patient-physician relationship? Furthermore, institution of e-mail access may disproportionately favor those with access to computing and online capabilities, further marginalizing those groups that already receive a clipped version of the ideal patient-physician relationship. Physicians and patients alike maintain an interest in preserving the patient-physician relationship. E-mail requires further examination and evaluation to develop practice guidelines for its reasonable use in medical settings. Physicians, thus, need to examine the acceptable boundaries for online doctoring. What are the acceptable limits for online relating, diagnosing, prescribing? Likewise, economic interests, including physician payment for services and potential compensation for advertising, need to be assessed. Physician organizations, health plans, and hospitals should help delineate the boundaries of appropriate e-mail practice. While some hospitals and state agencies have already disseminated preliminary electronic communications policies, many simply promote "deletion," without acknowledging its technical ineffectiveness; none addresses patient consent. Furthermore, codes of conduct and legislative proposals dealing with telemedicine and medical records privacy should not omit discussion of e-mail and thereby dismiss it as an insignificant aspect of health communication. With sufficient precautions and vigilance, e-mail can enhance patient dialogue and physician access, without reducing the patient-physician relationship to a patient-physician interface. References 1. Kassirer JP. The next transformation in the delivery of health care. N Engl J Med.1995;332:52-54.Google Scholar 2. Starr P. Smart technology, stunted policy: developing health information networks. Health Aff (Millwood).1997;16:91-105.Google Scholar 3. Institute of Medicine. Telemedicine: A Guide to Assessing Telecommunications in Health Care . Washington, DC: National Academy Press; 1996. 4. Reiser SJ. Medicine and the Reign of Technology . New York, NY: Cambridge University Press; 1978. 5. Starr P. The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry . New York, NY: Basic Books; 1982. 6. Cowan RS. A Social History of American Technology . New York, NY: Oxford University Press; 1997. 7. Fischer CS. America Calling: A Social History of the Telephone to 1940 . Los Angeles: University of California Press; 1992. 8. The telephone. BMJ.1878;2:43.Google Scholar 9. Gross ML. The Doctors . New York, NY: Random House; 1966. 10. Peters R, Sikorski R. Digital dialogue: sharing information and interests on the Internet. JAMA.1997;277:1258-1260.Google Scholar 11. Ferguson T. Health care in cyberspace: patients lead the revolution. Futurist.1997;31(6):29.Google Scholar 12. Brailer DJ, Hackett TS. Points [and clicks] on quality. Hosp Health Networks.1997;71(22):32.Google Scholar 13. Skolnick AA. Experts explore emerging information technologies' effects on medicine. JAMA.1996;275:669-670.Google Scholar 14. Fein EB. For many physicians, e-mail is the high-tech house call. New York Times.November 20, 1997:A1.Google Scholar 15. Saltus R. Take two aspirin and e-mail me in the morning. Boston Globe Magazine.January 18, 1998:11.Google Scholar 16. Mitchell P. Confidentiality at risk in the electronic age. Lancet.1997;349:1608.Google Scholar 17. Rubin R. Can't reach your doctor? try e-mail. US News & World Report.1995;118:82.Google Scholar 18. Green L. A better way to keep in touch with patients: electronic mail. Med Econ.1996;73:153.Google Scholar 19. Widman LE, Tong DA. Requests for medical advice from patients and families to health care providers who publish on the World Wide Web. Arch Intern Med.1997;157:209-212.Google Scholar 20. Greene J. Sign on and say "ah-h-h-h-h." Hosp Health Networks.1997;71(8):45-46.Google Scholar 21. Diffie W, Landau S. Privacy on the Line: The Politics of Wiretapping and Encryption . Cambridge, Mass: MIT Press; 1998. 22. Gostin LO. Health information privacy. Cornell Law Rev.1995;80:451-527.Google Scholar 23. Whalen v United States , 429 US 589 (1966). 24. Katz v United States , 389 US 347 (1967). 25. Not Available 18 USC §§2510 (1986). 26. Not Available 18 USC §§2510-2711 (1994). 27. Not Available 42 MJ 568 (USAF Crim App 1995). 28. Smith v Pillsbury Co , 914 F Supp 97 (ED Pa 1996). 29. Rose J. E-mail security risks: taking hacks at the attorney-client privilege. Rutgers Comput Technol Law J.1997;23:179-225.Google Scholar 30. Matthews WP. Encoded confidences: electronic mail, the Internet, and the attorney-client privilege. Kans Law Rev.1996;45:273-300.Google Scholar 31. Jarvis PR, Tellam BF. Competence and confidentiality in the context of cellular telephone, cordless telephone, and e-mail communications. Willamette Law Rev.1997;33:467-483.Google Scholar 32. Send confidential client communications without using encryption. Compleat Lawyer.Winter 1998:63.Google Scholar 33. Lawyers online: discovery, privilege, and the prudent practitioner. Boston Univ J of Sci Technol Law.1997;3:24.Google Scholar 34. American Medical Association. Code of Medical Ethics: Current Opinions With Annotations . Chicago, Ill: American Medical Association; 1997. Opinions 5.04, 5.05, 5.005, 5.057, 5.07, 5.075, 5.08. 35. Bradham DD, Morgan S, Dailey ME. The information superhighway and telemedicine: applications, status, and issues. Wake Forest Law Rev.1995;30:145-167.Google Scholar 36. Kane B, Sands DZ. Guidelines for the clinical use of electronic mail with patients. J Am Med Inform Assoc.1998;5:104-111.Google Scholar 37. US Department of Health and Human Services. Confidentiality of Individually-Identifiable Health Information: Recommendations of the Secretary of Health and Human Services, Pursuant to Section 264 of the Health Insurance Portability and Accountability Act of 1996 . Washington, DC: US Government Printing Office; 1997. Available at: http://aspe.os.dhhs.gov/admnsimp/pvrec0.htm. Accessed July 30, 1998. 38. Granade PF. Medical malpractice issues related to the use of telemedicine: an analysis of the ways in which telecommunications affects the principles of medical malpractice. North Dakota Law Rev.1997:73:65-91.Google Scholar 39. Weaver v University of Michigan Board of Regents , 506 NW2d 264 (Mich Ct App 1993). 40. Pope v St. John , 862 SW2d 657 (Tex App—Austin 1993). 41. Gilinsky v Indelicato , 894 F Supp 86 (EDNY 1995). 42. St. Charles v Kender , 38 Mass App Ct 155 (1995). 43. US Department of Commerce. Telemedicine Report to Congress . Washington, DC: US Government Printing Office; 1997. Available at: http://www.ntia.doc.gov/reports/telemed/cover. Accessed August 31, 1998. 44. Reichertz PS, Halpern NJL. FDA regulation of telemedicine devices. Food Drug Law J.1997;52:517-523.Google Scholar 45. Harroch RD. Agreements, disclaimers and disclosures should be no less formal or thorough on the Web. Nat Law J.February 2, 1998:C7.Google Scholar 46. Grossman M. Watch your links, or you'll get framed. Legal Times.February 2, 1998:31.Google Scholar 47. Shepherd DC, Fell D. Health care marketing and the Internet. Marketing Health Serv.1997;17(3):50.Google Scholar 48. Davies SG. Re-engineering the right to privacy: how privacy has been transformed from a right to a commodity. In: Agre PE, Rotenberg M, eds. Technology and Privacy: The New Landscape . Cambridge, Mass: MIT Press; 1997:143-165.
TI - On Call and Online: Sociohistorical, Legal, and Ethical Implications of E-mail for the Patient-Physician Relationship
JF - JAMA
DO - 10.1001/jama.280.15.1353
DA - 1998-10-21
UR - https://www.deepdyve.com/lp/american-medical-association/on-call-and-online-sociohistorical-legal-and-ethical-implications-of-e-Mdj3VjKMzQ
SP - 1353
EP - 1359
VL - 280
IS - 15
DP - DeepDyve
ER -