Hostname: page-component-6d856f89d9-nr6nt Total loading time: 0 Render date: 2024-07-16T08:50:07.816Z Has data issue: false hasContentIssue false
  • English
  • Français

Currents in Contemporary Bioethics

Physicians' Duty to Inform Patients of New Medical Discoveries: The Effect of Health Information Technology

Published online by Cambridge University Press:  01 January 2021

Mark A. Rothstein
Get access Rights & Permissions [Opens in a new window]

Extract

Physicians' duties to their patients traditionally have been construed narrowly in time and scope to focus on the specific episode of care or clinical encounter. Physicians generally have had no ethical or legal duty to notify patients about new medical information discovered after a visit, notwithstanding the health care benefits to patients that might flow from receiving the information. The rule was based on the relatively high burdens that notification would impose on physicians compared with the likelihood of benefits to patients. This established view, however, no longer may be appropriate in light of new physician-patient relationships and the reduced burden of patient notification using new types of health information technology (HIT). This article explores the duty to inform patients and former patients about relevant, medical developments subsequent to their episode of care. It concludes by recommending the recognition in ethics and law of a limited, ongoing duty to notify patients of significant information relevant to their health.

Type
JLME Column
Information
Journal of Law, Medicine & Ethics , Volume 39 , Issue 4 , Winter 2011 , pp. 690 - 693
Copyright
Copyright © American Society of Law, Medicine and Ethics 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Jacobs, D. O., “Clinical Practice: Diverticulitis,” New England Journal of Medicine 357, no. 20 (2007): 2057–2066; Schechter, S. Mulvey, J. Eisenstat, T. E., “Management of Uncomplicated Acute Diverticulitis: Results of a Survey,” Diseases of the Colon and Rectum 42, no. 4 (1999): 470–475.CrossRefGoogle Scholar
Id.Google Scholar
Strate, L. L. Liu, Y. L. Syngal, S. Aldoori, W. H. Giovannucci, E. L., “Nut, Corn, and Popcorn Consumption and the Incidence of Diverticular Disease,” Journal of the American Medical Association 300, no. 8 (2008): 907–914.CrossRefGoogle Scholar
See Calfee, B. E., “Note, What You Don't Know Will Hurt You: Physicians' Duty to Warn Patients about Newly Discovered Dangers in Previously Initiated Treatments,” Cleveland State Law Review 31, no. 3 (1982): 649–677.Google Scholar
Compare Tresemer v. Barke, 150 Cal. Rptr. 384 (Cal. Ct. App. 1978) (holding physician had duty to contact patient when IUD recalled three years later) with Doyle v. Planned Parenthood, 639 P.2d 240 (Wash. Ct. App. 1980) (holding physician had no duty to warn patient of recalled IUD because episode of care had expired years earlier).Google Scholar
See Wynia, M. K. Williams, G. Lemieux, J., “Many Physicians Are Willing to Use Patients' Electronic Personal Health Records, But Doctors Differ by Location, Gender, and Practice,” Health Affairs 30, no. 2 (2011): 266–273.CrossRefGoogle Scholar
See Jain, A. Atreja, A. Harris, C. M. Lehmann, M. Burns, J. Young, J., “Responding to the Rofecoxib Withdrawal Crisis: A New Model for Notifying Patients at Risk and Their Health Care Providers,” Annals of Internal Medicine 142, no. 3 (2005): 182–186.CrossRefGoogle Scholar
See, e.g., Griffin, C. A. Axilbund, J. E. Codori, A. M. Deise, G. May, B. Pendergrass, C. Tillery, M. Trimbath, J. D. Giardello, F. M., “Patient Preferences Regarding Recontact by Cancer Genetics Clinicians,” Familial Cancer 5, no. 3 (2007): 265–273.CrossRefGoogle Scholar
See, e.g., Smith, S. K. Trevena, L. Simpson, J. M. Barratt, A. Nutbeam, D. McCaffery, K. J., “A Decision Aid to Support Informed Choices about Bowel Cancer Screening among Adults with Low Education: Randomized Controlled Trial,” BMJ 341, no. 7779 (2010): c5370–c5383.CrossRefGoogle Scholar
See generally Hunter, A. G. W. Sharpe, N. Mullen, M. Meschino, W. S., “Ethical, Legal, and Practical Concerns about Recontacting Patients to Inform Them of New Information: The Case in Medical Genetics,” American Journal of Medical Genetics 103, no. 2 (2001): 265–276; Mangalmurti, S. S. Murtaugh, L. Mello, M. M., “Medical Malpractice Liability in the Age of Electronic Health Records,” New England Journal of Medicine 363, no. 21 (2010): 2060–2067.CrossRefGoogle Scholar
See generally Peters, P. G., “The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium,” Washington & Lee Law Review 57, no. 1 (2000): 163–205.Google Scholar
See Liebman, C. B. Hyman, C. S., “A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients,” Health Affairs 23, no. 4 (2004): 22–32.CrossRefGoogle Scholar
See Department of Health and Human Services, “Breach Notification for Unsecured Protected Health Information; Interim Final Rule,” 74 Federal Register 72,740 (2009).Google Scholar
National Conference of State Legislatures, “State Security Breach Notification Laws,” updated October 12, 2010, available at <www.ncsl.org/default.aspx?tabid=13489> (last visited September 12, 2011).+(last+visited+September+12,+2011).>Google Scholar
See Lo, B. Parham, L., “The Impact of Web 2.0 on the Doctor-Patient Relationship,” Journal of Law, Medicine & Ethics 38, no. 1 (2010): 17–26; Miller, R. H. Slim, I., “Physicians' Use of Electronic Medical Records: Barriers and Solutions,” Health Affairs 23, no. 2 (2004): 116–126.CrossRefGoogle Scholar
See Epstein, R. M. Fiscella, K. Lesser, C. S. Strange, K. C., “Why the Nation Needs a Policy Push on Patient-Centered Health Care,” Health Affairs 29, no. 8 (2010): 1489–1495; Nut ting, P. A. Crabtree, B. F. Miller, W. L. Strange, K. C. Stewart, E. Jaen, C., “Transforming Physician Practices to Patient-Centered Medical Homes: Les sons from the National Demonstration Project,” Health Affairs 30, no. 3 (2011): 439–445.CrossRefGoogle Scholar
See Fisher, E. S. Shortell, S. M., “Accountable Care Organizations: Accountable for What, to Whom, and How,” Journal of the American Medical Association 304, no. 15 (2010): 1715–1716; McClellan, M. McKethan, A. N. Lewis, J. L. Roski, J. Fisher, E. S., “A National Strategy to Put Accountable Care into Practice,” Health Affairs 29, no. 5 (2010): 982–990.CrossRefGoogle Scholar
HIT also has many non-clinical or “secondary” uses, including for public health purposes, in which there may be a growing appreciation for the value of the capacity to issue continuous alerts. See, e.g., Garrett, N. Y. Nichols, M. N. Staes, C. J. Akins, C. Safran, C., “Characterization of Public Health Alerts and Their Suitability for Alerting in Electronic Health Record Systems,” Journal of Public Health Management and Practice 17, no. 1 (2011): 1–7.CrossRefGoogle Scholar
See Kriest, A. H. Woolf, S. H., “A Vision for Patient-Centered Health Information Systems,” Journal of the American Medical Association 305, no. 3 (2011): 300–301.CrossRefGoogle Scholar
See Hsiao, C. J. Beatty, P. C. Hing, E. S. Woodwell, D. A. Rechtsteiner, E. A. Sis, J. E., “Electronic Medical Record/Electronic Health Record Use by Office-based Physicians: United States, 2008 and Preliminary 2009,” available at http://www.cdc.gov/nchs/data/hestat/emr_ehr/emr_ehr.htm> (last visited September 12, 2011) (43.9% of office-based physicians had any type of HER system).+(last+visited+September+12,+2011)+(43.9%+of+office-based+physicians+had+any+type+of+HER+system).>Google Scholar
See California Healthcare Foundation, “Consumers and Health Information Technology: A National Survey,” April 2010, available at <http://www.chcf.org/publications/2010/04/consumers-and-health-information-technology-a-national-survey> (last visited September 12, 2011) (only 7% of individuals had a PHR, but the percentage has been increasing).+(last+visited+September+12,+2011)+(only+7%+of+individuals+had+a+PHR,+but+the+percentage+has+been+increasing).>Google Scholar