Patients Search the Internet For Health Info, But Is It Ethical For Physicians to Google Patients?

Patients regularly surf the internet for health care information, doctor reviews, and treatment choices, generally starting with Google. Nonetheless, is it ethical for physicians to Google their patients? Doctors and bioethicists are weighing if this sort of search is proper.

Jessica Pierce, bioethicist, says that doctors shouldn't Google their patients. An Internet search isn't an ethical method to gather information about a patient and a physician isn't likely to find anything clinically applicable, she writes in Psychology Today.

Others contend that Internet searches by physicians regarding a patient might be satisfactory in very limited circumstances.  Examples of possible satisfactory utilization of Internet searches include scenarios where the doctor has a duty to warn of possible injury, to see if a patient's story is credible, to see if another professional's advice raises questions about a patient's story, and if there are suspicions of abuse or concern about suicide risk.

One example the authors noted was an instance where the doctor discovered that a cancer patient misrepresented her family's cancer history and was increasing funds, maybe fraudulently, to attend a cancer convention.

A bioethicist at The Hastings Center, a bioethics institute, argues that these notions of what represents an appropriate search are too far reaching. She says that doctor intent is what matters most. Why is the physician moved to do this? Is it going to help the patient or is it just out of personal curiosity?

The American Medical Association has new guidelines involving physician use of social media, nevertheless, those guidelines do not adequately cover this issue of a physician's Internet research on patients. The AMA admits this is an unresolved issue within the organization. The AMA's chair on the Council of Judicial and Ethical Affairs, Patrick McCormick, wrote in a blog post that physicians have a fundamental obligation to honor a patient's privacy and that professionalism and physician ethos extend to social networking.

Standards and guidelines involving a physician's use of the Web and social media are complex and still in development. To learn more,contact us.

The Case of the Accidental Recording

A decision in late June by a Virginia jury represents a sad and stunning display of doctors behaving badly.

A Virginia lawyer went to a gastroenterologist for a colonoscopy. After chatting with anesthesiologist, Dr. Tiffany Ingham, he readied his smartphone to record the post-op directions so he wouldn’t miss anything. He then inadvertently struck the record option before the process started and recorded the whole colonoscopy.

On his drive home, he played the recording and was stunned by the crass dialogue about his body parts and a line of insults toward him specifically by Dr. Ingham.

The patient filed a lawsuit against the physicians and their practices for medical malpractice, defamation, and punitive damages, even though the procedure went well.

The defense suggested the recording itself was not legal, yet in Virginia only 1 party must consent to recording of a conversation. The recording was entered into evidence and showed that Dr. Ingham talked about the patient’s sexuality, threatened to punch him in the face during the procedure, wondered if he had a sexually transmitted disease, and called him a “wimp” and other names.  

Dr. Ingham was found liable and the patient received $500,000 in damages. She has since moved to Florida and continues to practice there.

Doctors should be reminded to always appropriately discuss their patients, particularly in today’s developing technology age. A few inappropriate words can be quite harmful.

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The Changing Views on Customary Practice vs. Evidence Based Medicine in the Courts

In the courts, customary practice often is used as the standard for testimony. Nevertheless legal experts are beginning to see a shift in the balance toward evidence based medicine. Evidence based medicine uses evidence from medical research to optimize decision making.

The courts traditionally have focused on doctors' customary practice, however that is inherently subjective. Customary practice uses what "most doctors in the local geographic area or specialty usually do".

Customary practice can be very subjective and variable. For instance, forensic experts use their anecdotal and personal experience as a basis for their testimony on causation. These experience-based opinions are more subjective and are the reason experts often hold differing views on causation in a given case.

Evidence based medicine, on the other hand, uses objective analysis rather than subjective interpretation. Evidence based medicine implements the extensive utilization of the best current medical evidence, in making treatment decisions for patients. This entails using the most clinically applicable research and diagnostic testing.

One challenge of evidence based medicine is deciding what kind of evidence is admissible in court. One Supreme Court case, Daubert v. Merrell Dow, determined a trial judge as the one who pre-screens scientific evidence and decides which evidence to admit that will inform the jury. Such decisions could be beyond the skill and training of judges. In addition, clinical practice guidelines may not be available or may not be uniform.

The courts are more likely to embrace these standards if evidence based medicine is used by doctors in their own practices. And court acknowledgement of evidence based medicine and scientific standards will make physicians much more likely to embrace such standards to lessen their liability risk.

To find out more on the subject of evidence-based medicine, contact us!

How Mid-Level Providers Raise a Physician's Malpractice Risk Through Vicarious Liability

Nurse practitioners and physician assistants, considered midlevel practitioners or physician extenders, are very common in many physician practices. Midlevel providers supply many benefits for the doctor practice including: allowing a practice to serve more patients while also giving those patients more individual focus; they can be paid less than medical doctors; and lastly, they can be easier to get an appointment with since primary care physicians are retiring at an amazing rate in part due to increased government regulations and lack of compensation.

Midlevel providers can increase malpractice risks, however. Nurse practitioners and physician assistants work under the supervision of a medical doctor. Those physicians may be held responsible for their actions and for not adequately supervising the treatment they provide.

Vicarious liability is the legal term for extending liability through a connection with another party. Under this particular concept, a person who does not cause injury can be held liable through the relationship to the individual who did cause the injury.

Courts have ruled that the midlevel is an agent of the physician and can be held vicariously liable for negligence, even if the physician never saw the patient. Physicians often don't recognize the level of supervision needed to keep the liability risk low. Medscape does admit that the number of cases involving midlevel professionals is expected to grow given their increasing numbers in medical practices.

However, the American Academy of Physician Assistants sites numerous studies that show midlevel professionals are much less likely than physicians to be named in a malpractice suit. When they are sued, settlements and the awards are smaller than in cases involving doctors. The American Academy of Orthopedic Surgeons notes that many cases involving midlevel professionals also name the supervising doctor. Settlements that don't involve the physician are uncommon.

Physicians can minimize their liability risk by taking preventative measures:

• Thorough Review when Hiring. In the event the doctor knows or has reason to know the the midlevel is incompetent or unfit, he/she can be found negligent.
• Clear Definition of Scope of Work. Physicians must be specific regarding the estimated obligations and obligations of the midlevel to avoid potential errors. 
• Collaborative Communication. Midlevels ought to be made to feel comfortable coming to the physician with any issues or difficulties and should maintain a collaborative relationship.
• Communication with Patients. Patients should know they are seeing a midlevel professional and not a doctor. 

Vicarious liability suits are anticipated to continue to climb since midlevel practitioners are the future in outpatient medicine and primary care.

To find out more regarding the legal risks associated with midlevel professionals and the best way to minimize them, contact us!

Why Doctors Have a Love/Hate Relationship With Second Opinions

Making decisions about significant medical procedures or diagnosing an illness is not always a clear-cut endeavor. With complicated medical concerns, a second opinion is often sought by patients. Getting additional medical input, however, can be difficult. Thus, physicians either love or hate this extra input.

A study published in the journal BMJ Quality & Safety reported that as many as 12 million adults, or 1 in 20 patients, that seek hospital treatment within the U.S. are misdiagnosed. Half of these cases involved misdiagnosis that could lead to severe injury. A second opinion could avert some of those cases.

Some doctors are hesitant to have their diagnoses questioned. Others are more open to their patients finding out as much information as they need.

Kathy Miller, a physician and teacher of medicine in The Indiana University of Medicine, told Medscape that she feels it's a patient’s right to obtain a second opinion and  if your physician tells someone there is no need for an additional view, it is time to acquire a different doctor.

There are, in fact, several situations where a doctor could be the one who solicits a second opinion. If a physician is uncertain of a diagnosis, when distinguishing between Alzheimer’s or another type of dementia for instance, acquiring another viewpoint from another physician can be extremely helpful.

Dr. Frank Veith wrote in an article in Vascular Specialist that the existing system of soliciting second opinions and referrals is flawed. In many cases, referrals are derived from known associates, proximity, and sometimes even financial interests. Possibly picking out a physician from a list of “top doctors”, is not foolproof either as many of these lists are compiled from paying a fee or from flawed data.

A second opinion is most beneficial when done by a reliable and trusted specialist who is able to clearly represent the patient’s needs. But getting that specialist is complex. It takes time for a physician to find and vet specialists. Additionally, referrals are discouraged by many insurance policies unless they are done by an in-network physician. Additionally, under the Affordable Care Act, no insurer is required to pay for second opinions.

The policy of Medicare is that a second opinion is justified when the treatment is not an urgent situation and the patient can decide when and if to have the surgery. If the second opinion differs from the first, Medicare recommends further discussing the condition with the first doctor. In some cases, finding a third opinion is allowed. Medicare will cover the costs of these opinions, nevertheless this option is clearly not available to everyone.

For more information regarding the issues surrounding finding a second opinion, contact us!

The Case of a Doctor Giving the Correct Medical Advice and Still Getting Sued

Medscape recently had an article on a case affecting a Connecticut physician that was practicing the standard of care, but still got sued.

The case involved woman who had a strong family history of breast cancer. In 2005, the woman had an elective partial hysterectomy for uterine fibroids, which is benign. Whether or not to remove the ovaries too, during the hysterectomy was also considered. The benefit to removing the ovaries is eliminating the risk for ovarian cancer. The negative effects of removal are, if the woman is pre-menopausal, removing the ovaries will mean she will be menopausal post surgery and assume the risks of that condition.

During the pre-operative consult, the physician did note the patient's family history of breast cancer, which suggests a higher risk of ovarian cancer as well. However, the physician did not order a pre-operative genetic evaluation searching for the BRCA gene. This gene, if present, would indicate the patient had a much higher chance of growing ovarian or breast cancer later on.

The hysterectomy was a success, and the ovaries weren't removed. Yet, one year later, the patient was diagnosed with late stage, terminal ovarian cancer that had metastasized to the abdomen. The patient sued the doctor for medical malpractice.

As it turned out, the BRCA gene was negative when the patient was ultimately tested. If the test had been done pre-operatively, most physicians would have proposed that the ovaries not be removed. This fact was not admitted in court. The patient simply alleged that given her family history, the ovaries should have been removed, regardless of the fact that it was not accepted medical practice.

The jury found in favor of the plaintiff and awarded her $4 million dollars. The physician lost on lost on appeal to the Connecticut Supreme Court.  His malpractice insurance only covered $1 million dollars so the doctor's financial assets were attached to cover the judgment.

To learn more, contact us!

What to do when Insurance Companies Overrule Doctors

“That requires prior authorization” is not what we want to hear if we are a patient or a physician. However, requirements for prior approval for certain procedures and medications are here to stay in the health care industry. Problems arise as health care providers’ drive to treat their patients using the finest that medical technology provides clashes with the insurance company, who as a business, desires to control costs as much as possible. The insurance industry pays the vast majority of health care costs in this country and, since they are a business, they wish to make a profit, and controlling costs is a necessary component. Sometimes the requirement to control expenses as well as the need to treat patients can be reconciled. Frequently, however, both of these requirements cause a struggle.

One common area of conflict is in the use of antirejection medications for transplant patients. Transplant medications must be taken by transplant patients for the rest in their lives. This is often very expensive which is why insurance providers usually only cover the generic form of the drug, not the brand name. While generics generally work fine for some more common conditions like blood pressure, many physicians don't trust the generic type of antirejection drugs, frequently for good reason. However, because the expenses are being paid by the insurance companies, patients are typically left acquiring the generic medications against their doctors’ advice.

CBS News “60 Minutes” recently described the clash between insurance companies and physicians regarding mental illness. Cases of insurance providers, who never see the individual, are declining to cover the full course of treatment which has triggered needless suffering and in some cases, death.

Medical economists explain that the cost of complying with all the prior authorization requirements is time consuming and very costly. However, without a public policy solution for the issue, there are certainly a few things the physician may do to streamline the process.

First, if an insurance business is slow to pay or is too rigid in granting approvals, the doctor may consider not seeing patients with that insurance. If enough healthcare providers do this, insurance companies will begin to get the message and may modify their techniques.

Second, doctors must try to structure their prior approval processes in the most efficient way. Strategies include: use the insurance company’s website instead of calling on the telephone; try to get blanket approvals for common procedures and common medicines; centralize the approval operations; and lastly, doctors should learn which drugs and procedures do not require prior authorization and use those if they are appropriate.

Although these recommendations won’t resolve the situation of working with insurance providers, they may make the process a little easier.

Please contact us today with any of your medical legal needs!

Prescription Errors, New Professional Standards Lead to Greater Pharmacist Liability

Historically, the pharmacist job was pretty straightforward and pharmacist legal liability was considered minimal. A drug would be dispensed by a pharmacist based on the prescription. The responsibility to warn patients about their prescriptions has commonly been put on the drug manufacturers who make the drugs and compose the drug labels, as well as the doctors who write the prescriptions.

According to the National Association of Chain Drug Stores (NACDS), courts generally ruled that physicians bore more responsibility since they were the ones choosing which drugs to prescribe. The standard pharmacist defense has been that the pharmacist's duty extends only to accurately filling the prescription as written. In fact, 40 years ago, according to the Code of Ethics of the American Pharmaceutical Association, it was not professional for a pharmacist to even tell the patient the name of the drug unless they had permission from the prescribing doctor.

Recently, however, drug injury cases are increasing and some of these injuries are based on prescription blunders including, patients given the wrong dose, or even the wrong drug. The rise of these kinds of mistakes is putting pharmacists at an increasing legal risk.

Courts in some states are ruling that pharmacists have a duty to warn their patients about potential drug risks, moving away from the opinion that physicians must bear the majority of responsibility. Other states have considered the pharmacist's duty to warn is limited to certain situations such as when there are threats from drug interactions or prescription mistakes that were clear.

Professional responsibility is being emphasized by new pharmacy industry standards. The old perspective of limited responsibility is counter to the means that pharmacy schools train and teach today. The courts are seeing that failure to fulfill this responsibility is pharmaceutical negligence and are starting to understand this increased duty of pharmacists.

To find out more about pharmacist liability, contact us!

Should Unhealthy Behavior Result in More Expensive Health Insurance?

The increasing cost of healthcare is continually in the news today. Frequently, that discussion is turning to the function of the patient in the cost of their own care.

Medscape recently surveyed more than 21,000 physicians from 25 specialties and asked them: "Should patients who engage in unhealthy behavior pay more for health insurance?" Their findings illustrated the doctor community replied with a booming "Yes!"

The majority of physicians believed that patients who don't follow their advice about losing weight or quitting smoking, or other unhealthy behaviors, should have to pay more for health insurance. The doctors noted that such patients are hence more expensive to insure and present a higher health risk.

Another argument is the fact that a higher insurance premium could inspire patients to change their behavior. Others consider it is an issue of fairness. Patients who do follow doctors' orders and maintain their well-being shouldn’t pay the same rates as people who don't.

Just 15 percent of physicians that replied to the survey opposed using patient behavior to calculate insurance prices. Some said using this approach would penalize patients without resulting in any behavioral change and others didn't want to cast judgment of their patients.

The fact is that health costs are rising and health insurance premiums are rising to cover those costs. Some of the increase is because of the well-being of patients, especially those with long-term conditions for example cardiovascular disease and diabetes. These illnesses are among the most expensive to care for and are often the result of unhealthy behaviors.

The AMA's code of ethics states that some ailments and illnesses can be avoided by a healthy lifestyle and patients "should take personal responsibility when they may be able to avert the development of disease".  The AMA further argues that not only should patients share responsibility for their health, but also for the cost of their healthcare.

Learn more about the role that patients play in the cost of health care and insurance, contact us.