FROM PLASTIC SURGERY NEWS
Pitfalls of Online and Digital Communications with Patients
Farzad Nahai, M.D.
Neal Reisman, M.D., J.D.
T
his is the final article in a three-part series
focusing on you and the Internet. Part III addresses online communications between patients
and their doctors, and the associated medico-legal
considerations.
Advances in communications technology and
the prevalence of smart phones – which handle
calls, e-mails, texts, tweets, posts, video, photos and
Internet browsing – have thrust the practice of
medicine into a new era of doctor-patient connectivity. It’s now almost possible to conduct a
thorough consult with a prospective patient before a face-to-face meeting.
Furthermore, those of us who participate in
social networking sites such as Facebook and Twitter are allowing for more patients (established and
prospective) to find, familiarize themselves and
communicate with us like never before.
This accessibility presents a double-edged sword:
On the one hand, the Web can be a helpful tool to
administer and manage efficient patient care. But
on the other, it’s rife with potential pitfalls that –
because of the nature of technology, and the
speed and magnitude by which communications
occur – vastly amplify, and create greater repercussions for, any mistakes.
There seems to be a new story every week
about a sports or entertainment figure’s faux pas
played out in e-mails, texts and social media. ASPS
recently published “Guiding Principles: Online
Communications for Plastic Surgeons” to address
many of these sites and services (to access the
document, go to the “Medical Professionals” section of plasticsurgery.org, and click on the “PSN”
link at the top of the page). We highly recommend
you read it.
If you don’t want to be an example of communications with patients gone wrong, there are
several steps that can be taken to protect the safety
and confidentiality of your patients, protect yourself and minimize your risk for liability, and project the image of your practice that you work hard
to maintain every day.
Originally published in Plastic Surgery News as part of
YPS Perspective (April/May 2011).
Copyright ©2012 by the American Society of Plastic Surgeons
DOI: 10.1097/PRS.0b013e3182507693
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Existing vs. Prospective Patient
Many plastic surgeons now communicate directly with patients via e-mail and other electronic
means. This presents a new paradigm in the patient-doctor relationship that raises many questions, including:
• What precautions are recommended when engaging with patients online?
• Should there be a difference in the way we
communicate with or approach new versus established patients?
• What should we consider when staff communicate with patients electronically and/or manage the practice’s social media?
Established patients should be handled differently than prospective patients. For established
patients, the relationship for care is already in
place, so communications in the electronic milieu
can, if you choose, be more specific in terms of
diagnoses and recommendations. Furthermore,
existing patients require only documentation and
HIPAA care of the record for ensuring confidentiality. It’s also a part of the business record, and
is discoverable in court – meaning that a request
for possession of the information can be granted
in a legal proceeding.
It’s good practice to copy all e-mails, texts and
other social network responses and add them to
the patient record. Sometimes an e-mail will contain incorrect information; in that event, any statements on the part of the patient that are incorrect
or inaccurate should be corrected; if left uncorrected, these inaccuracies may be deemed true.
The new or prospective patient poses greater
concerns and potentially more liability. This is
especially true if she or he is from another state –
one in which the surgeon has no license to practice medicine. Keep in mind that with a prospective patient, you’ve not established the traditional
patient-doctor relationship; therefore, you must
be very careful about giving specific medical
advice.
With regard to prospective or out-of-state patients, the doctor and his or her staff must give
only generic answers such that the prospective
patient cannot rely on them personally.
www.PRSJournal.com
Volume 129, Number 5S • Plastic Surgery News
Two examples: The existing patient can receive specific advice about his or her care – but
the prospective patient cannot receive such advice. Instead, prospective patients should receive unspecific, general suggestions about care,
in combination with advice to seek local help if
anything changes or becomes emergent. In instances where a specific online consultation is
requested from a non-established patient, it’s
best to provide general information and then
advise him or her to seek actual consultation
with a board-certified plastic surgeon for specific answers and recommendations.
Another example: When participating on websites where patients solicit advice from physicians
they (usually) don’t know and have never met (for
example, realself.com), general answers or general information about specific procedures are
best (staff must follow the same guidelines as the
plastic surgeon). Bottom line: Choose how you
communicate with your own patients carefully,
and choose how you communicate with prospective patients more carefully.
Speak, Post, Text and Tweet Carefully
All forms of electronic communications are
discoverable in court. Discoverable correspondence
includes e-mails, text messages, tweets, Facebook
posts, blogs and more.
Be very careful what you say and how you hold
yourself out in the community. Several high-profile
people have been embarrassed (Tiger Woods), sued
(Brett Favre) or fired (Gilbert Gottfried) based on
text messages and tweets. If your “tweets” or Facebook page suggest you are “the best,” you might
be held to a higher standard than reasonable for
a plastic surgeon. Of course, never make comments about a patient you’re treating – no matter
how tangential or vague. It’s not too much of a
stretch for someone to do a bit of snooping and
figure out that his or her friend had surgery based
on your seemingly innocuous tweet or post. There’s
always a HIPAA risk of commenting on actual
patients, even if you change the name. Bottom
line: Don’t do it!
Extra Precautions for Photos
Some, if not many, online communications with
patients include photos. What about photos that
patients e-mail or text to you? Are they a part of the
medical record? How should they be handled?
The simple answer is that all patient information sent to you in any fashion is HIPAA protected,
and must be protected by you as well. In fact, the
physician has an affirmative duty to protect that
information. Photographs are particularly sensitive because they may contain the likeness or identifiable aspects of a patient (such as a birthmark or
tattoo); they may be nude photos of the patient;
or (when of the face) they could easily identify the
patient.
Furthermore, the metadata (description of an
item’s contents) associated with a digital photograph could have the patient’s name on it. If you
post photos of your patient to a website, make sure
to remove his or her name from the metadata tag
and replace it with something generic (i.e., “post-op
breast augmentation No. 4”).
Additionally, even though your e-mail account
is password protected, breaches of e-mail accounts
are not unheard of – so it’s a good idea to clear any
photos or information about patients from your
server – once copies have been made for the medical record.
If any photos of your patients are to be used for
commercial purposes (your website or brag book,
for instance) a specific commercial release must
be obtained; the usual photographic consent for
record-keeping purposes does not suffice. The
commercial-release consent gives you permission
to use the photos for specific purposes as outlined
specifically in the consent (i.e., for a specific website, publication, brag book, etc.).
We are personally familiar with a plastic surgeon who was sued by a patient who originally gave
her verbal consent to use photographs of her
breasts, then later changed her mind when her
finance found them on the Web. Be very careful
and vigilant about how you handle photos – and
always get written consent for precisely what you
intend to do with them.
A New Frontier
In many respects, we’re entering a new frontier
in the way patients and doctors communicate. The
ASPS guidelines regarding electronic and online
communications are both helpful and pertinent to
the way medicine is being practiced – and in many
instances, using common sense and following
HIPAA standards will keep you out of trouble.
Established and prospective patients should
be handled differently when it comes to online
and digital communications. We should be prudent and mindful about how we move forward
using cutting-edge communications technology –
we can advance care while avoiding harm or putting the patient-doctor relationship in jeopardy.
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