Telemedicine. When it comes to transforming healthcare, few concepts promise more far-reaching changes than the prospect of using 21st century technologies to provide care at a distance. Little wonder, then, that the concept also causes its fair share of confusion.
Consider the recent case of a plastic surgeon who received a note from her insurance company stating that sharing her expertise on RealSelf constituted practicing Internet medicine. Such practices, it said, were specifically excluded by her policy, meaning any legal repercussions that might arise wouldn’t be covered by her malpractice insurance.
The question, of course, is whether sharing one’s expertise constitutes telemedicine in the first place. After all, there are many websites which provide medical information or advice, including Smart Beauty Guide and WebMD, yet none of them are considered to be engaged in the activity.
Likewise, answering questions on RealSelf doesn’t constitute Internet medicine because doing so doesn’t create a physician-patient relationship. As the site’s terms of service clearly state:
The content, (which includes any text, graphics images or other material contained, accessed or entered on the Site (“Content”)), on this Site is for educational/informational purposes only, and is not a substitute for medical advice, diagnosis or treatment provided by a qualified health care professional. Any communication between you and health care professionals on the Site or through the Service is for general informational purposes only and does not create nor is it intended to create a physician-patient relationship as defined by federal and state law. Your reliance on any information or Content provided on the Site, whether or not it is provided by a health care professional, is solely at your own risk. You should always seek the advice of your physician or health care professional for any questions you may have about your own medical condition.
Suggesting otherwise — i.e., that sharing one’s general medical expertise creates a “duty of care” — would seem to be an overbroad interpretation and, in fact, the courts have already determined that it doesn’t.
Last year, for example, a New York court dismissed lawsuit from a man who sued Dr. Mehmet Oz after trying one of the TV doctor’s remedies and giving himself second- and third-degree burns. As reported in The Hollywood Reporter, the judge rejected the suit on the grounds that there was no “duty of care between a television talk-show host and his vast home-viewing audience.”
Presumably, a doctor responding to online questions from aesthetic consumers he or she has never met no more creates a duty of care than Dr. Oz looking “into a camera and address[ing] an unseen audience.”
Nevertheless, the issue can get complicated. After all, even if answering online questions doesn’t create a doctor-patient relationship it also doesn’t mean someone couldn’t file suit claiming that it does. In such a case, an insurance company would have to choose between defending its policyholder and risking being on the receiving end of yet another lawsuit, this one from the doctor alleging bad faith.
In the end, such a scenario would likely raise even more questions — e.g., is this really worth the time, energy and attorney fees? — which, in turn, would probably provide mostly unsatisfying answers.
When answering online questions, share expertise, not medical advice
The fact that aesthetic consumers can misconstrue doctors’ insights as medical advice means it’s incumbent upon doctors to emphasize the difference. Offering multiple options, explaining that insights are offered as opinions and qualifying responses with phrases such as “Not having reviewed your medical history…” or “Without reviewing any lab tests…” underscore the idea that you’re expressing opinions to questions posed by citizens, not giving medical advice to patients. And, as always, consult counsel for any and all legal advice.