CHAPTER 6: EVIDENTIARY RAMIFICATIONS

As outlined earlier, medical liability litigation often turns on the tribunal’s ability to determine "who said what to whom?" and "who did what when?" The conventional "forensic trail" usually involves a paper-based medical record and witnesses who were physically present during relevant discussions. This differs significantly from the myriad scenarios made possible by telemedicine: a treatment encounter can involve the simultaneous interaction of two or more professionals with a patient. Data, be it textual, aural or image, will be transmitted over distance and between sites before, during and after relevant clinical encounters in a variety of ways, only some of which will involve routine transmission or retention of a "hard copy". In such circumstances, new challenges arise for quality assurance, risk management and, in particular, litigation purposes in terms of the ability to locate evidence, ensure that it is admissible in the event of litigation, and to establish its accuracy and reliability, or its "weight".(1)

In this respect, technology provides both challenges and opportunities.

The opportunities, at least superficially, include avoidance of the often-encountered factual disputes between plaintiff and defendant - the "he said, she said" situation. Telemedicine can, it is argued, avoid or minimise these problems in a variety of ways:

• Videotaping of relevant encounters and the subsequent admission of such tape in evidence.(2)
• The fact that evidence is available from a third party professional or allied healthcare professional who is involved, albeit "virtually", in the telemedicine interaction.
• The "audit trail" capacity of certain electronic medical records systems, which will assist in the determination of relevant factual matters by reference to an analysis of who inspected the medical record, when such inspection took place and what, if any changes were made by that person.

These initiatives may facilitate the resolution of factual disputes and will occassionally provide evidence that is determinative of a dispute.

Offsetting these benefits is the very real concern that the new communications tools might, if not properly handled, generate new liability risks. Medical communications through e-mail, websites and chat groups, for example, can raise problems such as:

• The relative lack of security in some interactions with resultant legal exposure.

• The risk that doctors who communicate electronically with a general audience, for example, through a chat group or website, may unintentionally impose upon themselves a duty of care towards their readers, (3) and the creation of a "discoverable document", the existence of which we would need to be disclosed if litigation ensued.

These issues will increase in complexity once the internet and e-mail become ubiquitous tools for medical communications and once the technologies begin to offer even more possibilities for the exchange of information.(4) Further, difficulties may arise in determining which copy of a record or image is "the original". (5)

ADMISSIBILITY ISSUES

As medical practice moves towards the routine reliance on electronic data and away from the reliance and retention of "hard copy", the medical profession will look more towards the creation an "electronic medical record". This will give rise to new problems, many of which are not unique to telemedicine but which concern broader areas of electronic commerce, such as the legal recognition of data messages, the satisfaction of legal requirements for writing a signature and an original in electronic media etc.

These and other important issues, all of which are of relevant to telemedicine, have been addressed and are continuing to be addressed by governmental and law reform bodies in Australia and elsewhere. This Report will not canvass these issues in detail save to repeat the previously expressed observation that telemedicine does not operate in a legal vacuum. Telepractitioners and their advisors will need to comply with the obligations that are ultimately imposed upon or required of all persons who generate admissible, electronic data.(6)

Although the issue of the admissibility of electronic data is relatively new to medical liability litigation, Australian courts have long been familiar with computer-generated evidence and have formulated rules to govern its admissibility. In Victoria, for example, the Evidence Act 1958 has adopted a "computer-specific" approach which makes specific provision for the proof of the conditions precedent to the admissibility of computer produced evidence by certificate.

RISK MANAGEMENT OPTIONS

The concerns outlined above are offset significantly by the very real opportunities available to healthcare practitioners and employer institutions to improve the quality of care and the quality and availability of evidence by taking steps to ensure that relevant communications are made and data is transmitted in a coordinated manner, with stakeholders understanding the means through which deficiencies can be minimised and quality and reliability enhanced. It is critically important that telepractitioners understand the evidentiary significance of the various forms of communication undertaken and the problems that can arise in tracking communication flows, often many years after relevant events: users may not appreciate or understand that new ways of exchanging information can have significant legal, evidentiary and "discovery" ramifications.

It is submitted that closer liaison and better coordination of activities is required so that stakeholders, be they telepractitioners, their employers or their lawyers, understand how data is created, transmitted and stored in the new environment. In this way, steps can be taken to minimise risks and maximise opportunities through, for example, the formulation of protocols, policies and guidelines which should:

"Define in writing where the medical information will be stored and who has the responsibility for its retention. …mechanisms of data protection; responsibilities and procedures for disaster recovery; and a requirement for maintaining a transaction log where all events related to each retrieval of information are stored. The ACR’s standard has concluded that images stored at the sending and receiving sites should meet the jurisdictional requirements of the transmitting site. Images interpreted off-site need not be stored at the receiving facility provided they are stored at the transmitting site. However, if images are retained at the receiving site, the retention period of that jurisdiction must be met as well. A busy telemedicine system could require significant system administration and maintenance, and these duties and responsibilities should be described. In addition, with the increasing complexity of data networks, troubleshooting the telemedicine system will become an important issue".(7)

Endnotes to Chapter 6

(1) The changes wrought and challenges posed by technological advances in record-keeping practices are discussed in Chapter 3 of the report of the Australian Law Reform Commission Review of the Archives Act 1983. Report Number 85

(2) S. Schanz "Videotaping the teleconsultation: pros and cons" Telemedicine Today 5(6):9, December 1997

(3) However, some argue that:

"While the Internet and e-mail can be a valuable adjunct to a physician’s practice, this does not mean that every communication or physician website must be considered proof of a physician-patient relationship. Nor does it mean that accessing such services transforms an individual into a patient": "Don’t Drive Physicians Off The Information Superhighway" Forum, Vol. 19, 1, May 1998, (internet article-http;//www.rmf.org)

(4) For example "Next Generation Internet", the "Web-phone" and text-to-speech services.

(5) "Electronic storage introduces significant questions concerning the digitization methods, storage format and use of image compression technology. If the original filmscreen radiograph has been replaced by a digitized compressed record, a patient may claim that the hospital failed to retain the original radiographs". B.B. Cepelewicz "Telemedicine’s Licensing And Record-keeping Risks" Medical Malpractice Law & Strategy, January 1998, p.3 and 4.

(6) In Australia, for example, the issues have been discussed in Draft Guidelines for the Legal Acceptance of Electronic Records, prepared by the Tasmanian Department of Premier and Cabinet. In addition, the Report of the Attorney-General’s Electronic Expert Group entitled Electronic Commerce: Building the Commonwealth Legal Framework (31 March 1998) has considered some of these issues and resulted in the creations of an in-principle agreement by the Standing Committee of Attorneys-General to create uniform electronic commerce legislation.

(7) Cepelewicz "Telemedicine’s Licensing And Record-keeping Risks", p. 5

Index