Many physicians have had the unpleasant experience of being at a party only to be peppered with requests for rapid diagnosis, opinions on a loved one’s condition, or on-the-spot assessments of rashes of unknown origin. Studying someone’s scaly skin over wine and cheese is not only unappetizing, it creates legal and ethical dilemmas. For example, where does a physician draw the line between informal guidance and medical advice? What might happen if a friend or family member took your off-the-cuff comment as medical gospel, and had a bad outcome as a result? More importantly, how might a judge, jury, or medical ethics panel react? Medical liability lawsuits are an unfortunately common occurrence. According to the American Medical Association (AMA), 34% of practicing physicians have faced a medical liability lawsuit during their careers. The likelihood of a suit increases with duration of practice. Luckily, the majority of these suits fall flat. The AMA says 68% of closed claims were withdrawn, dismissed, or dropped. Among the 7% of claims that go to trial, 88% were won by the defendants. But press pause before you celebrate that statistic. The AMA reports that claims incur an average of $30,000 in defense costs. All of this is to say that if your informal advice goes awry, there can be consequences. What’s standard? Many medical malpractice cases hinge on the liminal concept of the standard of care, the definition of which has perplexed medical and legal scholars for decades. The writers and editors of PhysicianSense are neither, but we can point you toward what more informed minds have penned. The physician authors of a 2011 legal review, published in the Western Journal of Emergency Medicine, provide one of the more cogent and succinct understandings we’ve seen: “In more recent cases the courts have frequently upheld that the standard of care is what a minimally competent physician in the same field would do in the same situation, with the same resources,” the authors wrote. Let’s use the rash anecdote from earlier in this post and let’s say that the doctor in question practices family medicine. Now, would a “minimally competent” family medicine physician offer advice on the rash if they had the “same resources”? Those resources might be the same amount of training, and an app like Visualx to help with identification. There’s a lot of room for debate, isn’t there? On one hand, this seems like a straight-forward, low-stakes case. On the other hand, would a “minimally competent” doctor offer a diagnosis without following proper procedures, including gathering patient history? My friends/family wouldn’t do that Let’s say you botch the diagnosis, or the person at the party takes your off-the-cuff comment as gospel. While it seems unlikely that a friend or family member would sue you, it happens more often than you’d think. Gregory L. Eastwood, MD, weighed in on the topic in the Journal of General Internal Medicine. “Friends and relatives are not immune from suing physicians whom they consult informally,” Eastwood wrote. He pointed out that in order to have a malpractice lawsuit, there needs to be a physician-patient relationship. This relationship often evolves over time as a patient seeks care, receives it, and follows up. Providing medical advice to a friend or family member falls into a legal and ethical gray area because a doctor-patient relationship is being added to a pre-existing friendship or family relationship. To better protect yourself, Eastwood wrote that physicians should treat friends and relatives just as they would any other patient. Do the same documentation. Ask them to come to your office, if necessary. Review their records (in accordance with HIPAA). Exams, he wrote, may be a matter of legal interpretation. In a healthcare setting, an exam is self-evident and structured. “However, an examination in the context of a social or family situation may be a focused appraisal of something that is readily evident, such as detecting jaundice, or easy to do, such as limited palpation or assessing joint mobility,” Eastwood wrote. More than a legal threat It isn’t just the threat of legal action that should make you think twice about offering medical advice to friends and family. You also need to consider the quality of care you might be delivering. Here’s an example: Let’s say your car needs new brakes. As someone who isn’t mechanically inclined, you decide to bring your car to a friend’s repair shop. The shop is bustling and your friend doesn’t really want to take your money, so they rattle off the steps you’ll need to take to change the pads and rotors yourself. While your mechanic friend is well-intentioned, they haven’t inspected, let alone touched, your car. Would you say your mechanic friend has provided ideal mechanical advice? Think of all the practices and procedures that go into seeing patients in your office–things that constitute ideal medical advice. Patients arrive, have their vitals checked, perhaps undergo a brief screening from a nurse, then they see you. During the patient interaction, you conduct a thorough interview regarding their complaint, inspect the area in question, consider exacerbating or mitigating conditions, then prescribe a course of treatment or another intervention–all in accordance with your training and licensure. Compare this to off-the-cuff medical riffing. Would you call causal comments and opinions ideal medical care? Would you consider the structured procedures you normally follow part of the standard of care? At first glance, it might seem like you’re doing a friend or family member a favor, but in actuality, you may be more like the mechanic. Concrete guidance On one hand, you don’t want to get sued. On the other, you don’t want to be rude to friends and family. Eastwood offers the following guidance in the Journal of General Internal Medicine review: Clarify expectations with yourself and the person asking for input. Do they want simple facts, a medical opinion or judgement, or do they want “substantial involvement in the situation?” Put on the white coat. Well, not literally, but when you weigh in, weigh in as a doctor. These interactions should carry “the same professional expertise and judgment as you would any patient.” If you’re serious about the interaction, don’t do it for free, and don’t do it outside of an office. “Be aware that a physical examination and especially charging a fee strengthen the establishment of a legal relationship.” HIPAA still applies. Stick to it. Keep in mind any potential conflicts between your role as relative/friend and physician. TL;DR A friend or relative asks you for informal medical advice. What should you do? “Standard of care” is a highly subjective topic, and informal advice and its adherence to the standard of care are open to interpretation. Having a pre-existing relationship with the person complicates the nature of a legal physician-patient relationship. Keep quality in mind. Is informal advice as good as a traditional, structured office visit? If you do offer advice, be clear on your expectations, as well as the friend’s/family member’s. Deliver the advice or opinion the same way you would to a patient. Keep in mind that a structured office visit may be the better way to go. Respect the patient’s privacy. And finally, be mindful of conflicts of interest. Source
