Communications Technology Can Be Mixed Blessing

As psychiatrists wrestle with the economic forces reshaping the way they deliver care at the end of the 20th century, they also have to be vigilant about the brave new world of malpractice risks born out of technological breakthroughs designed to make their practices more efficient.

Satellite loses their bearings. Beepers fail. Cordless telephone conversations are taped. Confidential faxes are misdirected. Laptop computers get stolen. And all of these occurrences provide fertile ground from which aggrieved patients can file malpractice claims against their physicians.

The fact that a psychiatrist’s beeper fails and he or she is then unable to learn of patients in crisis or some other urgent clinical matter does not relieve the psychiatrist of his or her obligation to the patient. "We too often forget that while these electronic devices are very reliable, every once in a while the stop working. Also, you have to remember to turn them on," emphasized attorney Martin Tracy at an APA annual meeting workshop in June.

Tracy is senior vice president for the compliance at Professional Risk Management Services (PRMS), which administers the medical liability insurance program that APA sponsors.

It is crucial that individual psychiatrists as well as their practices have a backup plan they can turn to for communicating and remaining in contact when electronic devices let them down, he said.

He related the example of a psychiatrist who had stopped by the PRMS booth in the APA Resource Center at the annual meeting and told how he was unknowing victim of the May satellite snafu that rendered many of the nation’s beepers useless for a day or so. He had gone to see the film "Godzilla" wearing his beeper since he was responsible for the care of several patients during that time. Only when he returned home to an answering machine filled with urgent messages did he realize his beeper was nonfunctional and he was out of contact for four hours. "Luckily, nothing catastrophic resulted," Tracy noted, "but it was a good lesson to remind us that when technology stops working, that fact does not relieve psychiatrists or other professionals of their obligations to their patients. It also demonstrates the need to have backup system in place."

Confidentiality issues never contemplated prior to medicine’s leap into the technology arena can also raise the liability risk for psychiatrists and other clinicians. Conducting conversations about a patient via cell or cordless phone, for example, "tremendously weakens confidentiality protection," Tracy pointed out. He reminded the audience of how simple it was for a Florida couple to intercept, tape, and pass on cordless phone conversations made by the Speaker of the U.S. House of Representatives not long ago.

Using fax machines to send all sorts of patient data is also a routine part of medical practice today, but this too introduces the risk of inadvertent confidentiality breaches, Tracy cautioned. Citing the example of a Tampa delicatessen that because of misdialing kept receiving faxed medical records, he urged psychiatrists at the workshop to "at least make sure you’re faxing to the right phone number!"

He advised against using speed dialing buttons for sending faxes to regular recipients of patient data; there is too much opportunity to inadvertently hit the wrong button and send the confidential information to friends or relatives.

To protect further against the chance that they might breach patient confidentiality, Tracy urged psychiatrists to call to make sure that the intended fax recipients available to pick up the fax. Physicians are asking for trouble if they send a fax that then sits around for hours, ready to be read by any curious individual who passes by the fax machine.

A similar threat of confidentiality breaches lurks on the Internet. Much has been made of how reluctant many Internet users are to pay for goods with a credit card, fearing that cyber thieves can easily steal their card number. With that concern in mind, he wondered, why would physicians use e-mail to send patient records to insurance companies or other clinicians. "Your liability for misuse of a credit card is limited. Liability for violating a patient’s confidentiality is potentially limitless."

Adding to his roster of technologically induced malpractice risks, Tracy warned as well about the perils of laptop computers. A growing number of physicians are keeping records of patient treatment and contacts on laptops to facilitate their access to these data when they are away from the office.

What they may overlook, however, is that laptop computers have become a prized target of thieves who have a ready and burgeoning resale market for these devices. Despite the convenience factor, do not depend on these computers to be the sole repository of patient care information, he warned. Backup all information daily on disks and store them someplace other than near the laptop, he said.

Tracy also emphasized that a hard-disk crash that wiped out patient data will not succeed as a legal defense in a medical malpractice suit.

Yet another new wrinkle on the legal liability scene stems from the slow but steady increase in the use of telemedicine. Several states have taken a hard line on the licensure issue involving physicians who participate in long-distance telemedicine sessions within their borders. These states maintain that physicians who do so without meeting their licensure requirements are guilty of practicing medicine without a license. "Since telemedicine is in its infancy, we don’t know where these issues will end up," Tracy said.

This article appeared in Psychiatric News - July 3, 1998 Volume XXXIII Number 13