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Clinical Knowledge vs Medical Advice

When do you become someone’s doctor? When is a patient-doctor relationship established? Sharing your clinical knowledge with someone is not the same as giving someone medical advice.

This topic is becoming more relevant as we connect with patients directly online. For my readers, many of you are interested in being health coaches or health liaisons and not necessarily someone’s physician.

The Patient-Doctor Relationship

You can refer to the other article I wrote about the patient-doctor relationship which makes it clear that this relationship is a legal one.

Entering a patient-doctor relationship is like getting married. Not only should you choose your partner carefully but you should choose your words carefully so that you don’t reply with “I do” inadvertently.

You have a medical license that heavily regulates you. And you have malpractice insurance which kicks in when you enter a liability claim in regards to an individual patient.

The Patient-Doctor Relationship isn’t the Default

If I evaluate a patient in my office and get their entire PMHx but decide that their medical condition is outside of my expertise then I wouldn’t treat them. I wouldn’t diagnose them nor prescribe them anything.

In this scenario, I didn’t enter a patient-doctor relationship. They could sue me claiming that I ignored their medical condition and delayed the referral which led to the spread of their unknown cancer.

Even though we had an office visit, even if they signed a document giving me permission for treatment and management, no patient-doctor relationship was entered.

During this visit, I shared with that patient my clinical knowledge. But I offered no medical advice, assessment, treatment, diagnosis, or prescription. I performed no procedure.

Why know about the patient-doctor relationship?

The short answer to this question is so that you can avoid it. If my ex-wife wants to ask me a medical question, sure, I’ll answer it but I don’t want to be on the hook for it.

Someday I may decide to write a book. I don’t want 100,000 malpractice suits because someone put my information into practice.

The informed physician can choose when they enter the patient-doctor relationship. The ignorant physician may just land in one inadvertently.

Sharing Clinical Knowledge

A person walks up to you on the street whom you don’t know and they ask you about melanoma. You tell them everything you know and how you manage a melanoma in your derm practice.

Next, they show you something on their arm and ask if this could be a melanoma.

If you say that it looks benign and likely not a melanoma then it’s possible for the jury to say that you behaved as this person’s physician.

It would be better to say that it could be a freckle, an SK, a melanoma, or a skin tag. Followed by “Of course, I am not your doctor and can’t give you a diagnosis but hope you figure it out”.

You could go on and on for hours about how you’d biopsy, manage, and treat melanoma. That person can keep asking you questions and share personal health information but as long as you remain vague and don’t offer medical advice then you will remain just some random knowledgeable Joe.

Offering Medical Advice

If the janitor at my work asks me what they should do for their new-onset limp and I dive into questions to elicit the onset of it and then offer specific medical advice then I’ll have entered the patient-doctor relationship inadvertently.

It’s said that if only a physician could do what you did with that person then it’s likely a patient-doctor relationship.

It’s not hard to imagine that if this person went to their HR manager and brought up the same complaint the HR manager might ask similar questions – “Did you fall down?” “Did you maybe step on something?” “You know my uncle limped whenever he had back pain”.

The Malpractice Insurance Test

Here is a test you can perform to know if what you’re doing constitutes the practice of medicine or it’s just sharing of clinical knowledge.

Imagine you want to start a website where patients get a second medical opinion from you. You’re a GI doctor and offer advice on IBD management.

But you don’t prescribe any medication and have chosen not to tell your patients what to do. In fact, you require that they have their own treating GI doctors. But you just want to offer your expertise as to what regimen they can try and what lifestyle changes they can adopt to better control their IBD.

Now, if you called The Doctor Company and asked for coverage would they offer you a policy. Nope. That’s because you’re not practicing medicine – the agent couldn’t ethically or legally sell you that kind of coverage.

The Medical Board Test

Imagine the same case above. One of your IBD-ers calls the med board and states you were not only rude but you gave them terrible medical advice which ended you up in the hospital.

In order to file the complaint, the medical board will want to know what treatment the patient received, how often they saw that physician, and what kind of practice that doctor runs.

Perhaps the medical board will even reach out to you and ask you for some documents regarding this case. You tell them that you don’t keep any records on people who call you since you aren’t a medical practice. You forward the medical board the client-expert relationship document that each “patient” signs.

Would the medical board prosecute you? Did you engage in the practice of medicine and are you beholden to the Medical Practice Act?

Definition of Practice of Medicine

I’ll share with you a general guideline that is used by most states to define the Practice of Medicine. Which, if you engage in, is regulated by the state medical boards.

  1. Telling the public that you are authorized to practice medicine in their jurisdiction (advertising that you’ll be someone’s doctor)
  2. Prescribing, ordering, giving, or administering a drug to another person
  3. Claiming that you’ll prevent, diagnose, correct, or treat any disease, illness, pain, wound, fracture, infirmity, defect or abnormal physical or mental condition of any person (making any health outcome claims based on your recommendations to the patient)
  4. offering or undertaking to perform any surgical operation upon any person
  5. rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient (creating a SOAP note when you’re not the patient’s doctor)
  6. rendering a determination of medical necessity or a decision affecting the diagnosis of a person (having the patient take your recommendation as a binding consult to their own physician)
  7. using the designation Doctor, Doctor of Medicine, Doctor of Osteopathy, Physician, Surgeon, Physician and Surgeon, Dr., M.D., D.O. or any combination thereof in the conduct of any
    occupation or profession pertaining to the prevention, diagnosis or treatment of human disease or condition (using your degree to claim you’ll cure or manage disease)

These points are legalese so they aren’t easy to understand. But if you’re going to read them, read them in full. You can claim to be an MD and discuss general disease states with patients and charge them money.

What you cannot do is make individual health recommendations. With that, let’s actually dive into what you can and cannot do.

Answering Medical Questions Online

So, now you have started a medical website online answering questions regarding fertility. How do you handle that if you don’t want to enter a patient-doctor relationship?

As we reviewed above, the goal is to provide general information and share your clinical knowledge with the client. No individual medical advice should be given.

Phrases like “I’m not your doctor so I can’t tell you what to do… but…” are helpful. Letting the patient know that this is what you recommend for your patients and that you’re not telling them what they should do.

Sharing Medical Charts

What if a customer wants to share their MRI report with you?

They aren’t your patient – remember. As such, they can share whatever information they want with you as long as they are aware that their information isn’t protected by HIPAA nor are you their doctor.

If you review their MRI and offer your assessment or interpretation based on their individual PMHx you could be walking a fine line.

But if they are sharing the MRI with you and they have particular questions – as in, they want you to share your knowledge regarding an MRI, you are free to review and interpret at will.

Can You Get Sued?

Yes, it’s America, and you can get sued. There is no way around that. But the trails you leave behind and the guidelines you share with your informed client can prevent a lawsuit.

A malpractice attorney won’t take the case of someone who wants to sue a physician with whom they don’t have a patient-doctor relationship.

The district attorney for the state medical board won’t review a case in which no patient-doctor relationship was formed. Nor will they review a case where you in no way tried to play doctor for a patient.

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