April 23, 2013
Question:
Jennifer,
I was using the online resource health tap until I was informed by my hospital's risk management department that I would be personally liable for any suits that may arise from this involvement. Their thought is their policy of including "for information purposes only..." on each answer is not sufficient to prevent malpractice actions or practicing medicine without a license actions from taking place if answering questions from out of state. Do you think this is correct and if so are you aware of insurance products that covers online activities?
Thanks,
Dr. J
Answer:
I understand the hospital's perspective, and agree. Compliance is a spectrum. On the spectrum of compliance are you without risk by adding a simple disclaimer at the end of information that may be easily construed as medical advice from a professional? Not necessarily. On the compliance spectrum, one end is Compliance and the other is Exposure. Where you fall depends typically on the relevant facts. Here, we are discussing opining on a medical condition, where advice may be passing state lines. The readers of that advice may be relying on the information being relayed, especially given the weight of your professional designation tagged on to that advice. In certain instances you may even be compensated for relaying such advice, creating a contract - offer and acceptance - for your participation in the online forum, implying value in the information being relayed. So we have consideration passing hands, and an intention those reading will rely on the advice being relayed. Again, we may have a licensed healthcare practitioner under implied contract, if not explicit, and advice passing to online readers relying on that advice. The two potential obvious legal ramifications are mentioned above - malpractice and licensure issues - each not mutually exclusive; either a possibility resulting from giving online advice. Where a patient relies on advice and takes action based on it, contemplating a potential malpractice claim does not take much imagination. Likewise, in addition to an unauthorized practice charge for practicing in a state where the practitioner is not licensed, you also risk a host of charges from a state's licensure department resulting in censure, reprimand, suspension or revocation that may mirror in each state you are licensed in.
Next time you consider partaking in an online forum under your real name and licensure designation, please take into consideration the factors raised in this newsletter - compliance v. exposure coupled with intention and the potential for reliance on advice offered. To me, under the contemplated circumstances, the equation adds up to: 'not worth the risk'.
