Dr D had an active dermatology practice prior to the COVID-19 pandemic. Faced with the negative impacts of bottlenecks and business slowdowns, he looked for ways to increase his office’s income. After considering various options for improving practice, he hired a webmaster, who designed his new, highly interactive website.
Taking advantage of this new site, Dr D now performs telemedicine visits, has a strong social media presence and takes advantage of any new patients he sees both virtually and in the office. In fact, he spends hours answering questions via email. He had been advised, and was very careful, not to “practice medicine” on all these virtual sites.
A month after the start of the pandemic, he received an email from a woman who lived 5 a.m. from his office. According to the email, the patient had been seeing her local dermatologist for 3 years with a diagnosis of multiple skin cancers. She had been treated with a variety of methods and a particular area on her cheek was unresponsive. She said in her email that she couldn’t make it to Dr D’s office and was in desperate need of his help.
Dr. D corresponded with the patient 6 times over the next 2 months. He was very careful not to discuss with her the true diagnosis of her condition. However, he gave her plenty of advice on the pros and cons of the treatments she had previously received.
Dr D never suggested a change in his treatment and, to his dismay, he never received payment from him for his time. In his last e-mail to the patient, he advised her to join an online “discussion group”. She thanked him for the advice and joined such a group. Due to the homeopathic and naturopathic suggestions she received from the focus group, she did not seek further skin care for the next 4 months.
During this time, the same area of ââhis cheek started to bleed. She went to see a new dermatologist. A biopsy of the suspicious area revealed amelanotic melanoma. After the initial surgery, she was infected, was hospitalized, and eventually had a large scar on her cheek. Further evaluation revealed metastatic disease and she died 6 weeks later.
Her estate sued various people, including Dr. D. The basis for her claim against Dr. D was that she delayed treatment because he advised her to join a skin cancer discussion group. . Dr D knows he can’t lose the case unless his email notification establishes a doctor-patient relationship. Did it happen?
The answer involves an understanding of the doctor-patient relationship in our information-based world. The trial depends on whether the referral to a focus group constitutes the practice of medicine. If it is not determined that referral is a form of medical practice, such activity cannot form the basis for creating a doctor-patient relationship.
To determine whether a particular activity is a medical practice, one must examine the laws of each jurisdiction. Laws may vary from state to state. For example, in Virginia, there is a generic law that defines the practice of medicine as “the prevention, diagnosis and treatment of human ailments, conditions, diseases, pain or infirmities, whether physical or mental by any means or method. . Maryland law goes further and articulates a list of elements to characterize the practice of medicine, stating that the practice of medicine includes “diagnose, cure, treat, prevent and prescribe.”
There are very few states that apply this concept to telemedicine, the practice of medicine via the web. In Arizona, a telemedicine law defines this field as “the practice of providing health care, diagnosis, consultation, treatment, transfer of medical data, and education through audio communications, video or interactive data â. In states where statutory regulations or regulations of medical board examiners exist, the question that should always be asked is whether the electronic activity in question is related to treatment or diagnosis.
Dr. D referred his patient to a focus group. Without a doubt, the recommendations of the focus group members transcend the boundaries of organized medicine. Whether the referral would fall outside of the practice of medicine would depend on the intent behind Dr D’s referral. This will be determined by a court.