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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

1. Reiser SJ, Anbar M, eds. The machine at the bedside: strategies for using technology in patient care. Cambridge: Cambridge Univ. Press, 1984.
2. Willet DE. Medicine by telephone, continued: a legal opinion. Mod Med 1977; May 15: 73-78.
3. Goldstein RL. The doctor-patient relationship in psychiatry: a threshold issue. J Forensic Sci 1986;31:11-14.
4. Goldstein RL. Legal liabilities of long-distance intervention. Am J Psychiatry 1986; 143:1202-1203.
5. O'Neill v Montefiore Hospital, 202 NYS2d 436 (1960).