Before you hit 'send': Will an e-mail to your patient put you at legal risk?

Real legal risk
Earlier, we described conceivable legal risks that e-mail might create. But has e-mail caused legal problems for physicians? At least 3 recent published decisions answer: “Yes.” And, remember, only a fraction of legal cases lead to published decisions.
   • Huffine v Department of Health¹⁷ con­cerns a psychiatrist who was censured by the Washington state medical quality assur­ance commission for several boundary crossings, including sending his adolescent patient overly intimate e-mails.
   • Wheeler v Kron¹⁸ lists a variety of legal claims—intentional infliction of emotional distress, negligent infliction of emotional distress, general negligence, and medical malpractice—that arose from a psychia­trist’s e-mailed concerns about visitation arrangements in a divorcing couple’s cus­tody dispute. Although the court dismissed the last 3 claims, it allowed the intentional infliction of emotional distress claim to proceed.
   • Ortegoza v Kho¹⁹ includes excerpts of e-mails between a primary care physician and his married patient, with whom the physician had affair that led to a medical malpractice lawsuit.
 

Bottom Line
Most patients want to e-mail their physicians, and many psychiatrists find e-mail helpful in caring for patients. If you are using e-mail in your practice or are contemplating doing so, get the patient’s permission (preferably in writing), and follow the recommendations and guidelines cited in this article’s references.
 

Related Resources
• Kane B, Sands DZ. Guidelines for the clinical use of elec­tronic mail with patients. https://jamia.oxfordjournals.org/content/5/1/104.long.
• Professional Risk Management Services, Inc. Sample email consent and guide to email use. www.psychprogram.com/currentpsychiatry.html.