With hundreds of thousands of doctor answers, RealSelf has a fair sense of how doctors view participating in online Q&A with patients. Most plastic surgeons, dermatologists, cosmetic dentists and related specialties see it as a legitimate extension of their online marketing efforts, or simply, a way to help consumers make better informed decisions about cosmetic procedures.
That said, there are doctors who are uncertain how to quantify or qualify the legal risks they’re taking when posting answers.
As a lawyer, professor and board-certified plastic surgeon, Neal Reisman is well-versed in the legal ramifications of rendering medical advice to aesthetic consumers. So, when he shares a hypothetical scenario regarding answering questions online, it’s worth a listen:
Online consumer: I have a lesion in front of my ear and I’m interested in a facelift. Do you think I can come in for my facelift and get the lesion removed at the same time?
Doctor: Probably, little irregularities can usually be taken out during a facelift.
Online consumer: Great, I’ll see you in three months for my facelift…
The result? She delays treatment of what turns out to be melanoma, which, based on the doctor’s advice, can be considered grounds for negligence, says Reisman: “The doctor never saw her but gave her information that she relied on to her detriment. It sounds crazy but it’s real.”
Indeed there are risks in dispensing medical advice of this nature in a Q&A, or even an e-mail exchange.
Online is where the patients are
There’s no denying the fact that the Internet in general and social media in particular have changed the way doctors and potential patients interact. Five years ago RealSelf didn’t exist. Today over 3.5M unique visitors spend time researching their cosmetic options, and often, reading doctor’s answers to questions posed by others.
This medium for consumer education is evolving so quickly, that many doctors remain unsure of how to proceed. This hesitation effectually erects a barrier between the doctor and aesthetic consumers.
“There are a lot of people, particularly younger people, who have gravitated to where they’re using social media as their primary form of communication,” says Josh King, general counsel at Avvo.com. “They don’t use the phone anymore; they sure as hell don’t use faxes and they many not even see email.”
For such consumers, receiving answers to questions posted online may represent the only way to make contact, says King, and doctors shouldn’t be afraid to do so.
“Answering questions online is really no different than the type of generalized guidance that doctors provide people all the time,” he says. “People are looking for that orientation level of information; they’re not looking for a full-blown diagnosis or course of treatment.”
Furthermore, says King, the nature of most online forums, in which consumers ask questions anonymously, precludes concerns over HIPAA: “HIPAA doesn’t apply in online forums because it’s all about the protection of PHI. If it’s all anonymous, then HIPAA is pushed completely out of the way because there’s no PHI in an anonymous forum.
“The big question is whether answering questions online constitutes the practice of medicine,” says King. “In my view, it doesn’t.”
Provide multiple options, not medical advice
Not surprisingly, perhaps, Reisman takes a more conservative approach. “[Social media] is not going away and you need to recognize and understand the liabilities and exposures from what you communicate online,” he says. “Rendering any advice on which a prospective patient can rely establishes a doctor/patient relationship.”
The key word is “rely” as in the hypothetical anecdote above, in which the doctor’s advice prompted the prospective patient to take a particular course of action. “If you give specific advice to someone you don’t know or have never seen,” says Reisman, “you can be violating state law and you can be sued for negligence.”
One way to avoid problems, he says, is to develop general answers with multiple options: “As long as you’re giving a plethora of options, you’re not giving specific information that they can rely on.”
And, he says, prepare a variety of answers in advance, have them ready and your staff on the same page if they provide answers to online queries. After all, he adds, “You oughta know what the questions are going to be by now.”
Once you have a set of prepared answers, you can further protect yourself by paying attention to how you answer the questions you get.
“Answers should be given as opinions and not as advice,” says Maureen Ezekwugo, EVP, Doctor Community, at RealSelf. “Statements such as ‘In my opinion’ or ‘In my past experience’ or ‘In similar situations that I’ve handled…’ can help delineate opinions from advice.” By following this approach, Ezekwugo also points to de minimus risk from participating in online Q&A, “In four years we’ve not heard of a single instance where a doctor’s answer led to a consumer taking legal actions against them.”
For doctors who remain concerned, they can add standard disclaimers to postings. Phrases such as “Without doing an in-office consultation, I can’t say for certain but in situations similar to this, here’s what I’ve found…” underscore your interest in being helpful while clearly stating the content is not to be relied upon for medical decisions.
Engage with patients but avoid the pitfalls
While Reisman, King and Ezekwugo all offer their own takes on answering questions online, they all agree that anything that discloses PHI is to be avoided. And while any doctor worth his or her degree(s) already knows that, things can get tricky when it’s the question, not the answer, that leads to the disclosure.
“Answering questions where someone wrote something where they included personally identifying information can result in elevated risk,” says King. “Likewise, if a patient gets into really specific questions or if it sounds like they might be relying on the answers a little too much, I’d be careful.”
Careful, says King, not so cautious that you miss out on what is probably the most significant development in doctor-patient communication since the fax machine.
“Doctors see the penalties are so onerous that they err on the side of caution in how they communicate with patients,” says King. “That’s rooted in a laudable desire to protect patient privacy but if it serves to keep doctors from communicating with patients through the means that patients are most comfortable with, that’s a bad thing.”