Dr. B. generates a flood of new patients through a newly designed, interactive website. Although very careful not to “practice medicine” on the Web, he offers one patient extensive advice about the pros and cons of the rosacea treatments she has received. She later sues Dr. B, claiming she delayed treatment due to his advice.
Dr. B. runs an active dermatology practice. Seeking to increase revenues in his office, he considers a variety of practice enhancement options. He ultimately hires a Web master who designs a new highly interactive website, which generates a flood of new patients.
Dr. B. enjoy begins spending 60 minutes every day answering email questions. He had been advised - and has been very careful - not to “practice medicine” on the Web.
Eighteen months ago, he received an email from a woman who lives five hours from his practice. According to the email, the patient had been seeing her local dermatologist for three years with a diagnosis of rosacea. She had been treated with a variety of topical and oral agents. One particular area on her cheek was not responding.
The woman stated in her email that she was unable to travel to Dr. B.’s office and desperately needed his help. Dr. B. corresponded with the patient six times over the next two months. He was very careful not to discuss with her the actual diagnosis of her condition. He did, however, give her extensive advice about the pros and cons of the treatments she had received. Dr. B. never suggested any changes in her treatment; he never charged her for his time.
In his last email to the patient, he advised her that she should join a Web-based “chat group.” She thanked him for this advice. She joined such a group, and because of the homeopathic and naturopathic suggestions she received from the chat group, she did not seek any further dermatologic care for the next three years.
Three years later, the same area of the patient's cheek that had originally resisted treatment began to bleed. She went to see a new dermatologist. A biopsy of the suspicious area revealed basal cell carcinoma. She underwent Mohs surgery, which resulted in an infection, and she was hospitalized. The patient ended up with a large scar across her cheek.
The patient sued a variety of individuals, including Dr. B. The basis of her claim against Dr. B. was that she delayed treatment for three years because he advised her to join a rosacea chat group. Dr. B. knows that he cannot lose the lawsuit unless his email advice established a physician-patient relationship. Has that happened?
The answer to this issue involves an understanding of the physician-patient relationship in our information-based world. The lawsuit hinges on whether the referral to a chat group constitutes the practice of medicine. If the referral is not determined to be a form of medical practice, then such activity cannot form the basis for creating a physician-patient relationship. To determine if a given activity is medical practice, one must look at the laws of each jurisdiction. The laws may vary from state to state.
For example, in Virginia there is a generic statute that defines the practice of medicine as “the prevention, diagnosis and treatment of human physical or mental ailments, conditions, diseases, pain or infirmities by any means or method.”
Maryland law goes further and articulates a list of elements to characterize the practice of medicine. The Maryland law states that the practice of medicine includes “… diagnosing, healing, treating, preventing and prescribing.”
There are very few states that apply this concept to telemedicine, which is the practice of medicine via the Web. In Arizona, a telemedicine law defines this area as “the practice of healthcare delivery, diagnosis, consultation, treatment, transfer of medical data and education through interactive audio, video or data communications.”
In those states where either statute or boards of medicine examiner regulations exist, the question that must always be asked is whether the electronic activity in question relates to treatment or diagnosis.
Dr. B. referred his patient to a chat group. Undoubtedly recommendations from members of the chat group itself are outside the bounds of organized medicine. Whether the referral itself would be outside the practice of medicine would depend on the intent behind Dr. B.’s referral. This will be determined by a court of law.