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Relationship with Patient and Still Treating? Lawsuit Possible
It's "asking for trouble"
If an emergency physician (EP) continues to treat a patient after a social relationship has developed, he or she faces significant legal risks, according to Jennifer Lawter, RN, JD, vice president of risk management at EPMG in Ann Arbor, MI.
"It is much more difficult to be certain you are providing appropriate and objective care if you are treating someone with whom you have a social relationship," she explains. "You are leaving yourself open to inferences that you would not otherwise have to deal with in a litigation environment."
If you are dating an ED patient, and continue to treat the patient in some way, "you are now in a very difficult position," says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin.
If the EP refilled a prescription for narcotics for that former patient as a favor, the patient could later claim he or she became addicted to the medication as a result of the erosion of the boundary of the doctor-patient relationship, says Derse.
"Conversely, the patient may claim that you inadequately treated the patient's pain because of your relationship," says Derse. "There is a potential for legal action on both sides of that scenario."
In the case of an EP prescribing narcotics or other more significant forms of treatment to a person he or she is dating, Lawter says "that's just asking for trouble."
Lawter says that while many lawsuits have occurred with this scenario within other specialties, such as psychiatry, she is unaware of any that have involved EPs specifically. "This is probably because EPs do not normally have the types of ongoing relationships with patients that allow these types of problems to develop," she says.
The blurring of the doctor-patient relationship can become a legal issue, warns John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, particularly if the EP is prescribing scheduled substances.
Many states now have laws requiring any physician caring for a patient to have a formal doctor-patient relationship and medical records, adds Burton. "If I'm dating you and I write you a prescription, then now I'm in trouble twice," he says. "We don't have a doctor-patient relationship, and there are no records."
If You 'Friend' ED Patient, Can Legal Problems Result?
When putting your identifying information onto a social network, says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney, remember that you can be found not only by friends, but by people you don't want to find you including your ED patients. There are potential legal risks if an ED patient contacts you via social media, he warns.
Sullivan says that he joined Facebook to find out about high-school and college friends, until a patient posted a message on his "wall" to complain that he wouldn't prescribe her narcotic pain medications in the ED. "I immediately deleted my account," he says.
If patients post medical questions on your Facebook wall, says Sullivan, there is a question as to whether they have given you consent to discuss their medical care in this open forum.
"'Friending' a patient will allow the patient access to all your personal photos and to all your other friends," says Sullivan. "Is that something you want to happen?"
All Fair Game
If an EP "friends" a patient, says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Institute for Health and Society at the Medical College of Wisconsin, "the normal boundary in the patient relationship starts getting eroded." If that patient ends up suing the EP for malpractice, the attorney will be able to discover these postings, says Derse. "If the EP said something that seemed funny while chatting online, it may now seem flippant. Now, all of that is fair game for the attorney."
For instance, a comment on a patient's Facebook wall such as, "I told you it would probably turn out to be nothing!" can be used to demonstrate that the EP wasn't really taking the client's problem seriously, says Derse.
"The attorney could use that to set the stage for how the patient encounter went overall," he says. If a patient sends you a "friend" request, Derse recommends replying, "Sorry, I can't 'friend' patients or former patients."
It's All Discoverable
Increasingly, says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, organizations are taking stances against use of social-networking sites. "They are saying that physician employees should not be in any kind of relationship with patients, including on the Internet," he says. "A 'friend' request might start out as a very simple thing, but usually goes over the line to unethical behavior."
Recently, Burton was contacted by a waiter who served him at a restaurant, who found his contact information on the hospital website, and wanted help finding a psychiatrist.
"This was a potentially explosive situation," he says. "The person seemed to be stable in my limited interaction with him, and I'm also an empathetic person and wanted to help."
Burton sent the man some referral information, but it raised the issue of what he would have done if the request had been different. "What if he emailed that he needed a new lithium prescription?" asks Burton. "Do I help him with that? Of course not, but how do I respond?"
On-line communication, says Burton, is allowing patients to break down traditional barriers in contacting physicians. "You have to be very careful, because you can get into legal and certainly ethical areas on both sides," he says.
You likely feel an ethical responsibility to offer help as an EP if you see a motor-vehicle accident with obviously injured people, says Burton, while a patient's email request for help is not as clear-cut.
"You are clearly not legally obligated to provide a service to an individual who contacts you via social media," says Burton. "Remember that this is all discoverable in the event of a lawsuit."
Jennifer Lawter, RN, JD, vice president of risk management at EPMG in Ann Arbor, MI, says that many hospitals around the country have developed no-tolerance policies with respect to social networking. "Nurses and physicians have been fired for discussing patients on Facebook, even when names were not mentioned," she says.
In November 2010, the American Medical Association issued a policy on professionalism in the use of social media, including a recommendation that physicians should separate personal from professional information. "These will likely be used against physicians in lawsuits if they do not comply," Lawter says. "They specifically mention that, as a general rule, physicians should not accept 'friend' requests from patients, especially if your only relationship with them, at that point, is as a patient."
Lawter says that while she's unaware of any litigation directly on-point with the above issues, "perhaps, given more time and opportunity, it will develop. I think this is a ripe opportunity for emergency physicians and nurses to be proactive."
For more information, contact:
John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 266-6331. E-mail: JHBurton@carilionclinic.org.
Arthur R. Derse, MD, JD, Professor, Bioethics and Emergency Medicine, Institute for Health and Society, Medical College of Wisconsin, Milwaukee. Phone: (414) 955-8498. E-mail: firstname.lastname@example.org.
Jennifer Lawter, RN, JD, Vice President, Risk Management, EPMG, Ann Arbor, MI. E-mail: email@example.com.
Matthew Rice, MD, JD, FACEP, Gig Harbor, WA. Phone: (206) 790-5371. Fax: (253) 853-5617. E-mail: firstname.lastname@example.org.
William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. E-mail: email@example.com.