MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAW

Yale Journal of Law and Technology Volume 5 Issue 1 Yale Journal of Law and Technology Article 3 2003 MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAW MICHAEL A. MCCANN Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation MICHAEL A. MCCANN, MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAW, 5 Yale J.L. & Tech (2003). Available at: https://digitalcommons.law.yale.edu/yjolt/vol5/iss1/3 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . MCCANN: MESSAGE DELETED? PROFESSIONAL PAPER MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAW MICHAEL A. MCCANN* I. II. IN TROD UCTION .......................................................................... 104 A LEGAL PRIMER FOR THE PHYSICIAN-PATIENT RELATIONSHIP... 107 A . HISTORICAL EVOLUTION ....................................................... 107 B. CONTRACT FOR CARE ........................................................... 109 C . D UTIES OF C ARE ................................................................... 112 III. EVALUATING THE SCOPE OF ONLINE USAGE BY PATIENTS & PHYSICIANS ............................................ 115 A . INTERNET EXPLORATION ....................................................... 115 B. E -MAIL U SA GE ...................................................................... 117 IV. WEIGHING PHYSICIAN-PATIENT E-MAIL IN THE CONTEXTOF THE PHYSICIAN-PATIENT RELATIONSHIP ................ 119 A. ADVANTAGES FOR PATIENTS ................................................ 119 B. DISADVANTAGES FOR PATIENTS ........................................... 120 C. ADVANTAGES FOR PHYSICIANS ............................................. 123 D. DISADVANTAGES FOR PHYSICIANS ........................................ 125 1. RELATIONSHIP FORMATION ............................................ 125 2. OUT-OF-STATE MEDICAL COMMUNICATIONS .................. 128 3. D UTY A DHERENCE ......................................................... 130 4. OPERATIONAL CONSIDERATIONS .................................... 135 V. CREATING CERTAINTY IN PHYSICIAN-PATIENT E-MAIL THROUGH SPECIALIZED CONTRACTS ............................... 136 V I. C ON CLU SION .............................................................................. 140 * The author received his J.D. from the University of Virginia School of Law in 2002, and his B.A., magna cum laude, from Georgetown University in 1998. The author would like to thank his father, Dr. William P. McCann, M.D., for his insight on the world of medicine. The author practices law in Boston, Massachusetts, and may be reached by e-mail at mich aeinccann(&,alumnni.virginia.edLj. Published by Yale Law School Legal Scholarship Repository, 2003 1 Yale Journal of Law and Technology, Vol. 5 [2003], Iss. 1, Art. 3 YALE JOURNAL OF LAW AND TECHNOLOGY 2002-2003 MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAW MICHAEL A. MCCANN This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascentform of communication. Indeed, courts have yet to indicate when the physician-patientrelationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waitingfor judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondenceas a valuable means of communication, and a toolfor improving the quality of health care as well. I. INTRODUCTION The physician-patient relationship has remained largely intact over the past 2500 years. Recent advancements in technology, however, may test its rigidity. Indeed, the advent of e-mail communication between physicians and patients has raised new questions about traditional duties. Communication between physicians and patients has entered uncharted waters, and e-mail will surely challenge both the scope and predictability of the physician-patient relationship. For some, physician-patient e-mail will mark a new and improved era of communication. The potential benefits are numerous, and studies consistently indicate that the vast majority of patients would like to e-mail their physicians. Moreover, physician-patient email may enable physicians to receive critical information more readily, in addition to serving as a new tool for disseminating medical knowledge. For patients, e-mail may prove empowering, as it will allow direct and instantaneous communication with their physicians. Such a prospect seems particularly appealing when compared to present day inconveniences like sitting in uncomfortable waiting rooms or engaging in awkward phone conversations. Along these lines, e-mail may enhance patient convenience, as patients may directly obtain test results from any location and may schedule or cancel appointments with the click of a mouse. https://digitalcommons.law.yale.edu/yjolt/vol5/iss1/3 2 MCCANN: MESSAGE DELETED? M. MCCANN MESSAGE DELETED? On the other hand, both patients and physicians may encounter several drawbacks in this new communication arrangement. For one, a patient may misinterpret information provided in an e-mail, particularly since most medical text exceeds the comprehension of lay people. In addition, should physicians prefer to link their patients to commercialized health websites rather than expend energy typing detailed e-mails, patients may feel overwhelmed, if not ill-informed by what they read. Finally, employers may be able to read patientphysician e-mails, which, in some instances could adversely affect those patients' professional opportunities. Physicians also encounter a mixed bag of benefits and detriments by e-mailing patients. At first blush, the advantages appear quite appealing. Most apparently, e-mail avoids the "telephone tag" and voice-mail messaging inherent in telephone communications. This benefit seems particularly helpful for administrative activities, such as rescheduling appointments and refilling prescriptions. Second, physician-patient e-mail enables physicians to clarify advice or to direct the patient to helpful resources on the Internet. Third, physicians may receive more information by e-mail than by in-person consultations, thus reducing the necessity of back-and-forth conversations. Fourth, physicians can respond to e-mail messages at their own convenience, and thus decrease the amount of time spent answering patients' questions by telephone. Fift (...truncated)