Liability and the Therapeutic Relationship
The establishment of a “therapeutic” relationship between health care provider and patient is key to a whole chain of responsibilities that the provider can be held liable for. Health care newspaper columnists answer questions from individuals, but they do not have a “therapeutic relationship” and therefore are not held legally to the appropriate use of their answers. The development of a therapeutic relationship by e-mail will most likely follow the same standards as the telephone. A phone call to a physician’s office from a stranger to the practice can be refused without legal recourse. Just how much interaction, in what form, how
often, and how much information exchange must take place before health care practitioners have established “therapeutic relationships” with patients and are thus responsible for the results of their advice are important, unanswered questions in health care.
Another strategy providers use is to simply not answer e-mails from “strangers” to a practice. The non-answer could take the form of no response and deletion, acknowledgment of receipt with a standardized policy statement on e-mails from strangers, or a full response with the appropriate disclaimer. The strategy chosen is a business, ethical, legal, and clinical decision. Ethical guidelines for dealing with patient inquiries and medical advice in the absence of a pre-existing relationship have been described .
Pharmacy has a long history of answering unsolicited inquiries using various forms of communication. The e-mail “Ask Your Pharmacist” (AYP) programs are just an extension of that tradition. The development of a therapeutic relationship and the inherent professional obligations for pharmacists seem to reside entirely with the pharmacist’s association with the prescription. A review of this topic indicates this is an unregulated area . A disclaimer is often included in AYP responses indicating that the information provided is not for treatment or diagnosis purposes and must not be acted upon without the advice of a personal health care provider. These disclaimers are ubiquitous in health care websites and health care information e-mails. Just how protective from malpractice these disclaimers are has yet to be established. Using disclaimers would seem appropriate in a setting where a therapeutic relationship is not established nor intended and to serve as a reminder to the patient about the “worth” of the advice.
On the other hand, AYP services are obviously worried about being held liable for providing faulty advice or delaying care. These services recognize that questions from “perfect strangers” raise a lot of concerns about the accuracy of the information provided by strangers and the use strangers will make of any information given to them by a pharmacist. The strategy of AYP services and other providers of health information to limit liability is use of a disclaimer. Even those sites that collect extra information in a health record make sure to limit their responsibility for the use of the information. A typical disclaimer is “The information you provide in this Confidential Health History is for record keeping purposes only. Please refer to “Check Drug Interactions” or “Ask a Pharmacist” for additional information” .