Keeping Risk Management Current with Electronic Devices
by Martin G. Tracy, JD, ARM

Electronic devices – wireless and cordless phones, copiers, fax machines, and answering machines -- are essential to modern psychiatric practice. Each of these helps the psychiatrist devote more time to patient treatment by reducing delays in contacting patients and by eliminating drudgework. Despite their undeniable value, however, each of these devices presents certain liability exposures. Although many of the devices are relatively new, the prudent psychiatrist, using common sense and traditional principles of risk management, can recognize these exposures and manage them appropriately.

Wireless and cordless phones: Because these devices are so much like the traditional telephone, the user is seduced into forgetting their essential nature. These devices are radio transmitters. Conversations on these devices – especially older cordless phones -- can be intercepted inadvertently. They can also be deliberately intercepted by those who are just curious, and those who have their own agenda. Calls made on even the most up-to-date models can be intercepted by anyone with the right equipment.

Psychiatrists using such devices need to keep this in mind. One might even query whether a psychiatrist has a duty to ask the person on the other end of the conversation (e.g., patient, third-party payer, colleague) whether he or she is using a wireless or cordless phone. After all, if psychiatrists are concerned enough about protecting patient confidentiality to install special soundproofing and white noise systems in their offices, there is little excuse to risk disclosure of confidential patient information by careless use of these devices. (Nice way to get this point across!)

Copiers: The primary risk inherent in copiers is their ability to produce quickly unlimited numbers of copies of documents. Many of the documents in a psychiatrist’s office are confidential and capable of causing embarrassment and harm if publicized. Thus, common sense and good risk management principles dictate that the psychiatrist maintain some control over the use of the office copier. A simple way of doing so, if the copier is equipped with a security device, is to require each user to enter a PIN number or password to use the machine. At the very least, this will serve to create a record of who used the machine, when they used it, and how many copies they made. It is also wise to place the copier in an open area, rather than where someone could work unobserved for a long time.

Fax machines: As hybrids of the telephone and the copier, they inherited some liability exposures from each. From the telephone, they inherited the ability to connect to wrong numbers and to occasionally cut off in the middle of a conversation. The copier passed down the ability to produce photo-quality images of source documents in limitless supply. Accordingly, risk management advice applicable to both the phone and the photocopier apply to fax machines.

The Tampa Tribune (2/28/97), in an article entitled "Fax drops records in her lap," reported the case of a Tampa-area accountant whose fax number differed by one digit from the fax number of a busy doctor’s office. The accountant estimated "she has received faxes of medical records for 50-60 people, including 15-page medical histories, lab results and details of everything from sinus problems to sexually transmitted diseases." The article points out that in the wrong hands, these misdirected faxes could have caused immeasurable damage to both patients and their physicians.

The lesson is clear: the prudent psychiatrist will instruct office staff to confirm the fax number to which they are sending documents. Prudence also dictates that the sender confirm the complete receipt of the fax. It is not uncommon for pages of the source document to stick together and thus not get transmitted. The cover sheet should clearly state how many pages are being faxed, so that the recipient can be sure the entire transmission was successful.

One feature of most fax machines is particularly troublesome -- speed dial.

Almost every owner of a fax machine has received at least one misdirected fax. These misdirected faxes often result from the sender pressing the wrong speed dial button. The results can be embarrassing at best, and catastrophic at worst. Pity the poor psychiatrist who discovers that a patient’s treatment record was sent to the sandwich shop where the office staff routinely faxes its lunch order (Speed Dial #1) instead of the patient’s insurance carrier (Speed Dial #2).

Answering Machines: Even this relatively ancient electronic device presents risks. The psychiatrist or staff person leaving a message for a patient must (1) be sure they have reached the patient’s phone number -- everyone has had at least one misdirected message left on a machine and identifying information on many "greetings" is non-existent-- and (2) keep the information in the message to a minimum. There should be no detailed disclosures of personal information left on an answering machine. Ideally, the psychiatrist would have discussed with the patient at the first visit whether he can leave messages on the patient’s answering machine and who else might have access to that machine.

Likewise, if a psychiatrist uses an answering machine in the office to provide information and take messages when the office is closed or when the staff is unavailable, the machine should be in a secure location with the volume turned off. Building maintenance staff after-hours and patients in the waiting room should not be able to hear the incoming messages as they are left by callers.

Technology has made the communication and transfer of information easier than ever, but the basic responsibilities of protecting patient confidentiality and maintaining the integrity of patient records remain the same. Complacency with regard to electronics can lead to unintended problems. Physicians and their staff must remain aware of their obligations and on their guard against potential breaches.

Written by Martin G. Tracy, JD, ARM, President & CEO, Professional Risk Management Services, Inc., Manager of the APA-endorsed Professional Liability Insurance Program. This article appeared in the March 17, 2000 issue of "Psychiatric News"