American Journal of Law & Medicine

Online without a net: physician-patient communication by electronic mail.

I. INTRODUCTION

Patients continue to find new ways of reaching their physicians. In the past, patients and their health care providers developed relationships through the course of everyday affairs and across a wide variety of social exchanges. Although other methods of communicating were introduced into the medical context, telephones, pagers and voicemail all retained some connection to individual voices. Moreover, medical practitioners and patients alike never anticipated that these technologies would substitute for genuine personal interactions. Nor did they anticipate that another new technology, electronic mail (e-mail), would shift communications back in time to the days when letter writing formed the basis for diagnosing and relating. E-mail in medical practice has already begun to reconfigure the patient-physician relationship in the electronic age.(1)

This Article will discuss the rights and expectations of patients and physicians when they communicate electronically. Part II describes the historical context of electronic medical communication. Part III reviews current practice standards for medically related communication. Part IV discusses the inclusion of medical communication documentation in the medical record. At the intersection of several legal fields, electronic communication by health care providers and patients implicates a variety of legal concepts. Part V assesses the current law of medical information privacy and physicians' duty of confidentiality as these principles inform clinical e-mail use. Additionally, Part VI argues that existing informed consent standards likewise apply to medical e-mail. Part VII analyzes the relationship between medical e-mail and existing and developing telemedicine law. Part VIII explores newly emerging government and insurance industry proposals for integrating electronic communication into standard practice. Finally, this Article considers practical suggestions for the use of medical e-mail.

II. BACKGROUND: HISTORY OF ELECTRONIC MEDICAL COMMUNICATIONS

Electronic communication in medicine is an outgrowth of technological innovation and social custom.(2) Until recently, medical practitioners, patients and insurers communicated solely by postal mail, telephone or in person.(3) Indeed, early American medicine was practiced predominantly in person or by written description delivered by courier or mail.(4) During the seventeenth and eighteenth centuries, physicians valued patients' descriptions of their illness above a physical examination when making medical diagnoses.(5) By the middle of the nineteenth century, however, physical evidence determined medical conclusions; thus, physicians needed to examine their patients to make accurate diagnoses.(6) Physicians traveled to their patients' homes and, after 1843, could consult, again in written form, by telegraph.(7)

The telephone dramatically altered the patient-physician relationship soon after its invention.(8) Despite some trepidation about using the telephone for such personal matters, patients quickly accepted the technological exigencies in order to receive better medical care.(9) Once patients believed that telephone lines were secure, they became increasingly dependent on the telephone for medical consultations, particularly in emergencies.(10) By the mid 1960s, telephone communication routinely supplemented face-to-face appointments and facilitated health promotion by allowing people who could not travel to access to medical care.(11) By retaining a live connection to individual voices, the telephone was "the next best thing to being there."

Communications in the health care industry generally were augmented and facilitated by computer-based information networks.(12) Health information networks emerged in the 1960s, first for bibliographic and academic purposes and later for public health data tracking and health organization internal record keeping.(13) Electronic communications among health organizations were virtually unknown during the following two decades.(14) Notably, just as pharmacies rapidly adopted early telephone use, the pharmaceutical industry inaugurated computerized communication in health care delivery.(15) Indeed, "[t]he communication loop among pharmaceutical manufacturers, wholesalers, retail stores, and payers was one of the earliest to be computerized."(16) With the pharmaceutical industry online, pharmacies themselves began transmitting and receiving electronic information about their customers.(17) By the early 1990s, drugstores electronically processed insurance eligibility, copayments and claims for most covered prescriptions.(18) Nonetheless, most pharmacies have not initiated corresponding programs to link individual physicians to pharmacies for online prescription transmittal, though some facilities are experimenting with such connections.(19)

Hospitals ordered supplies electronically as early as the mid 1970s using specifically dedicated terminals linked with American Hospital Supply.(20) Hospitals and government agencies began forming computer networks by the mid 1980s.(21) Later, hospitals, and eventually individual providers, submitted Medicare claims to the government through processing clearinghouses.(22)

As medical practice relied increasingly on computers for billing management and diagnostic data, more physicians began to follow suit by purchasing computers for their offices.(23) Indeed, the advent of managed care has created an increased need for documentation and computerization in order to process the increasing number of claims submitted.(24) As such, many physicians and other health care providers understood the concept of connecting with insurers or hospitals via computer even before the vast expansion of the Internet.

III. CURRENT PRACTICE REQUIREMENTS FOR COMMUNICATION TECHNOLOGIES

While most physicians contentedly rely on personal or telephone contacts to practice medicine, some doctors have recently begun to explore using e-mail and other forms of electronic communication with patients, insurers and colleagues.(25) Evidence also suggests that patient demand for electronic communication with health care practitioners is growing.(26) Nonetheless, early indications show that merely one to two percent of physicians use e-mail to communicate with patients,(27) though more use electronic means to conduct research or communicate with colleagues.(28) Physicians who are employing electronic communication are experimenting with the contours of cybercare; some offer informational or interactive web sites,(29) others diagnose and prescribe for a consultation fee,(30) while others establish centers for international access to specialized care.(31)

Like the telephone, e-mail may serve a useful function in the instantaneous delivery of information. An additional benefit of e-mail, though, is that it is never busy and, like a fax or answering machine, it does not require that the recipient be present to receive the immediate message. Unfortunately, although land telephone lines are relatively secure, e-mail, like faxes and cellular or cordless phones, are inherently more susceptible to interception.(32) Moreover, e-mails, fax transmittals and telephone voicemail messages can be forwarded to unintended or unknown recipients. E-mail and fax transmittals also can be printed out, copied and circulated manually. Additionally, both e-mail and voicemail rely on a central computer platform to store or forward a message. A central system retains an electronic translation of the message and can restore the message even after an individual user deletes it. Deleting an e-mail merely removes the message from the screen and hard drive of an individual terminal, but the record of the e-mail is not deleted. As a result, e-mail users can deny neither sending nor receiving the message.

Although e-mail is transmitted via telephone connection, it is more like postal mail than a telephone conversation. E-mail requires a unique mailing address, indicates a return address, akin to company letterhead, and displays a "postmark" indicating the message travel route, the time sent and the time received. Furthermore, e-mail is a written exchange that can be easily stored, forwarded, copied or printed. E-mail also is easily subject to alteration and interception without detection. Postal mail is transported through a relatively secure system, but users enhance security by placing messages in envelopes. This additional step is particularly important for revealing evidence of tampering.(33) With electronic communications, encryption software can scramble message contents until it is received by the intended addressee.(34) More important, encryption guarantees message authenticity and integrity.(35) Thus, encrypted e-mail is comparable to the delivery of a registered letter, while unencrypted e-mail is more similar to a postcard.(36)

Therefore, although it is useful to compare telephone and e-mail practices, certain aspects of the electronic technology require additional precautions before doctors and patients may safely communicate by e-mail so that potential risks and liabilities are clear to both parties.

IV. ELECTRONIC COMMUNICATION AS A MEDICAL RECORD

Traditionally, any document about a health care interaction becomes a part of a patient's permanent medical record.(37) Admission to a health care institution, medical testing and appointments with medical staff are all included within the medical record.(38) More important, health care providers retain documents related to personal history, diagnosis and treatment as medical records.(39) In most states, the scope of "medical records" includes all "records kept in the usual course of the practice of the health care provider"(40) or, more generally, any personal information that relates to a person's health care.(41) Likewise, all communication that is generated by or about the patient, including any photographs or imaging, is part of the medical record.(42) Medical staff note and summarize telephone conversations whenever possible because doing so promotes favorable medical outcomes and constitutes good medical practice.(43) This compilation of materials recording medical test results and health care providers' observations and opinions provides the basis for the continued care and treatment of a patient.(44) Furthermore, the law requires the retention of these materials(45) and, in some instances, state and federal governments or accreditation bodies specifically regulate this retention process.(46) Notably, a failure to preserve all such medical record information may constitute malpractice if a patient is harmed by a health care practitioner's actions that result from mistaken assumptions about the medical record.(47)

These general record-keeping standards apply equally to electronic or computerized medical records.(48) However, the consent requirements for review and alteration of the computerized medical record are less stringent than those concerning release of medical records generally.(49) Indeed, even though the law requires a patient's written consent for the transfer of medical records to third parties, no patient consent is necessary to use the medical record for data processing.(50) Significantly, one commentator notes, "[t]herefore, personal medical information may be entered into a computer system without informing the patient and without implementing additional standards for its security."(51)

Although a patient's personal communications with a health care provider are part of the medical record, whether in the paper chart(52) or transferred to electronic form, the patient's own words rarely appear in the descriptive summaries of medical histories, treatments or encounters.(53) A physician's notes, for example, may describe how that practitioner perceived the patient's own narrative of personal history. These entries are often written in the passive voice, as though they were objective facts rather than representations of individual histories, sensations and feelings.(54) Accordingly, the doctor distills the actual interview, or human medical encounter, into impressions and particular descriptions that the practitioner prescreens as relevant to isolating specific medical diagnoses.(55)

Critics assert that far from providing an objective account of reality, the medical record is wholly constructed by physician-authors(56) and other medical personnel.(57) As the patient presents one account of his or her experience, the health care provider is almost simultaneously interpreting the patient's story in order to present the medical story that will be relayed to any authorized onlooker through the medical chart notation.(58) Indeed, the charted version can only be a representation of the actual medical conversation, one that is filtered through the practitioner's lens. Some have argued that "the medical record plays an active, constitutive role in current medical work[,] ... shaping and maintaining a patient's trajectory ... [and] shaping ... the doctor-patient encounter."(59)

Such summaries may be necessary in contemporary medicine. A health care practitioner, by isolating significant details from the patient's narrative, which may in part be directed by the physician, can focus attention on potential diagnostic clues. This approach does not inherently prevent the practitioner from hearing the patient's full range of experiences; rather, it facilitates the identification and treatment of illness in a nonjudgmental way.(60) Yet, practitioners and patients alike should acknowledge that the practitioners' notations in the medical record do not provide the whole story of the patient's experience of self and illness. Medical record entries or progress notes conform to a standard that is easily understood by other practitioners.(61) Furthermore, such summaries are easily transferable to an electronic format because medical staff originally organized the information around specific concepts and subject areas.(62) Some predict that, eventually, all such medical record information, including the medical practitioner's narrative, will be originally generated, stored, transmitted and retrieved in electronic media.(63)

Although a patient's own written communications, such as letters to physicians concerning medical progress, symptoms or detailed histories, could conceivably be converted into an electronic format by scanning or manual entry, such a complete electronic transfer has not yet been contemplated. Currently, only a summary of those kinds of communications are included within the text of the practitioners' running entries.(64) As a result, neither a patient's own description of his or her symptoms or history nor a running log of patient-physician communication are usually found in medical records.

With e-mail, however, patients' own words will appear in the medical record. The very interactions themselves will be recorded verbatim, serving as a transcript of the encounter.(65) Moreover, these e-mail communications will no longer be prescreened for "medically relevant" material. Because such communications between patients and their health care practitioners are readily stored electronically, physicians may access the e-mails for future reference when complete medical histories would ordinarily facilitate medical decision making.(66) Health care workers should maintain e-mails in the patient's medical record like any other relevant document. Medical staff must archive electronically, or print and preserve in the paper chart, any e-mail that pertains to an individual patient.(67) This proper documentation is essential for e-mail because the patient may store these electronic messages, even if the physician makes an attempt to delete them.(68) Additionally, because e-mails are subject to discovery in a potential legal proceeding, they must be treated as medical records.(69)

To protect e-mail messages that have become part of a patient's record from authorized, but unwelcome observers,(70) medical staff should maintain most clinical e-mails in a separate, private section of the record.(71) Otherwise, health care practitioners, whose specialty fields differ from the symptoms described, and insurers, prior to making coverage determinations, could view medically related e-mails unless special protections over the patients' words were instituted. Just as some states treat sensitive psychiatric information differently from other general medical information,(72) e-mail between patient and health care providers should not be available to all known and authorized users of the medical record. Practitioners should be aware that some e-mail information may be too sensitive and too personal to include in the full electronic or paper record, just as patients may ask that certain information discussed in person not be recorded in a permanent file. Therefore, although a hospital employee, a third-party payer or a newly referred health care provider may have legitimate reason to review a patient's medical record, the e-mails would not appear in that more basic record. The sensitive e-mails would be archived elsewhere, accessible only by unique access codes.(73) These e-mail messages could only be revealed to other practitioners, if relevant to their medical decision making, with patient consent.(74) When information that originated in an e-mail dialogue bears directly on a patient's history, diagnosis, treatment course, adverse reaction or other major event typically noted in the record, a practitioner should summarize that event or information and note it elsewhere in the general medical record. …

Log in to your account to read this article – and millions more.