Guidelines for Telemedicine, Confidentiality, & Informed Consent
The telephone is a form of technology that affects every area of life
in the United States, including health care. Indeed, the telephone has
become so embedded in our daily lives that we hardly think of it as technology
any more; it has taken its place in the natural order of contemporary
reality. Today, with new modes of communication facilitated by the internet,
telemedicine has an every expanding role in medical care. The quality
of telemedicine and cyberspace can only be assured however if informed
consent and confidentiality remain cornerstones of medical care.
Introduced in 1876, the telephone revolutionized medical practice by
providing a communication link between doctor and patient that was not
restricted to the physical boundaries of the hospital (1).
In recent years, beeper paging systems and telephone answering devices
have augmented the opportunities for doctor-patient communication by
eliminating many of the limits imposed by time as well as space. Communications
technology has proved to be enormously valuable for treatment and consultation,
especially in emergency situations. In making it possible to practice
medicine at a distance, however, the telephone and its more recent companions
pose certain dangers, since they alter not only the physical location
of the physician in relation to the patient but also that which the physician
actually sees and hears of the patient. Willet (2) points
out that the use of the telephone in medical practice brings with it
a special potential for malpractice liability:
Those instances where physicians have treated a disembodied voice
they couldn't identify as a patient more often seem to wind up in
courts. The fact that there was no oppourtunity to establish the
physician-patient rapport that discourages suits may contribute,
but it seems more likely that physicians simply are not successful
in coming to the right decisions, in a telephone transaction or via
the internet if the patient is a relative stranger.
The use of technology in medical communications has radically altered
the physician dialogue and, consequently, the process of medical decision
making. With "long-distance" medicine, even the issue of when
and where treatment begins becomes confused. Since the duty of care is
the cornerstone of liability, it is important to determine exactly when
such a duty is established. At what point does the physician talking
on the telephone or in cyberspace assume clinical responsibility for
the patient on the other end of the wire or computer terminal?
When a physician offers clinical services to another individual, he or
she has instigated a relationship with that other person as a patient
and a resultant duty of care (3, 4).
This relationship has commonly been understood to evolve from face-to-face
communication; however, malpractice case law has established a broader
arena in which the interaction may be initiated. In O'Neill v Montefiore
Hospital, a malpractice action was brought against an emergency
room doctor who offered advice to a patient over the telephone (5).
The doctor, who had never met or examined the patient, was held potentially
liable as a result of that telephone conservation. The court held that
a duty of care had been established by the single call. This case suggests
that physicians risk establishing a duty of care when they offer clinical
opinions over the telephone or computer screen to unseen patients.
Revised excerpt from chapter 12 in "Decision making in psychiatry
and the law." Gutheil, T.G., Bursztajn, HB, Brodsky,
A., and Alexander V. Williams & Wilkins, 1991: Maryland, 227-228.
References
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Reiser SJ, Anbar M, eds. The machine at the bedside: strategies for
using technology in patient care. Cambridge: Cambridge Univ.
Press, 1984.
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Willet DE. Medicine by telephone, continued: a legal opinion. Mod
Med 1977; May 15: 73-78.
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Goldstein RL. The doctor-patient relationship in psychiatry: a threshold
issue. J Forensic Sci 1986;31:11-14.
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Goldstein RL. Legal liabilities of long-distance intervention. Am
J Psychiatry 1986; 143:1202-1203.
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O'Neill v Montefiore Hospital, 202 NYS2d 436 (1960).