Physicians on Scubaboard (TS&M, DocVikingo, ..etc)

[diverdoug1]

I have a question for the other physicians on ScubaBoard. I love to share information about diving physiology/medicine. I would like to contribute to the Scubaboard community with my knowledge of diving medicine, but have a question of those of you who already do so. Do you feel that you expose yourselves to increased liability by offering your medical opinions on these forums? When I opine on a medical issue, I try to answer in general terms, and disclaim that a proper exam should be done, but I am not sure that it protects me from someone looking for someone to blame for a medical complication. What are your feelings on this issue?

[Saturation]

Alas, nothing is guaranteed, so if you play, there is a risk of injury.

Generality is most important. Not addressing a particular case, an individual by name, and hinting of the same by reference to the details of a query. A pen name and disclaimer helps. I don't think there is a precedent for liability given forum advice and participation as if I heard of it, I would have been gone long ago !

DAN has set some precedent, usually in Q&A style in Alert Diver or on their web page.

A pen name should preferably never have a link directly to the real name authored by the true pen name author. Thus, if batman is really Bruce Wayne MD, the googlers may infer it, but Bruce Wayne must never post in his real name or in his home page something to say, I am Batman.

If you search on a pen name, other identities come out, so the ambiguity adds protection particularly if Wayne never acknowledges he is Batman.

[shakeybrainsurgeon]

This is an interesting and perhaps not totally resolved issue.

To qualify for negligence litigation, a physician and patient have to enter into a bona fide physician/patient relationship. This is not a simple thing to define. For example, if I am on call for a given specialty for an HMO, and a patient calls me, or even simply books an appointment with my office without speaking to me at all, for an issue in my specialty, a relationship may be established without personal contact or examination.

On the other hand, I can examine a person for hours for the purposes of an independent insurance exam (say, for workers' comp), yet the law recognizes that such an exam does NOT constitute a relationship for malpractice purposes.

Whether a relationship can be established online only is a matter of some controversy, as many companies dispense drugs like viagra online based on the notion that such a relationship can indeed be set up without any personal contact. In this case, however, the websites are setting themselves out as medical providers, supplying the names and credentials of the doctors, prescribing drugs, taking histories and charging fees.

The facts that 1) no scubaboard MD is obligated to treat a poster, 2) the board does not advertise itself as a provider of medical services, 3) the postings on both sides are basically anonymous, or can be, so no rational person would reasonably expect to establish a relationship with an anonymous provider of unknown credentials; 4) there is no compensation for services; 5) there is no physical contact...all make of these facts render it virtually impossible to argue that a true provider/patient relationship could be established in this forum, making negligence a non-issue IMHO

Actually, this may be a better questions for the lawyers...

[ScubaDocER]

What I do is to try to answer the question to the best of my ability. I try to stay within my field of training and suggest that others with more experience help to contribute to the discussion. I always suggest that the OP contact their PCP or a specialist if the situation requires it. I think it is appropriate to tell people that your opinions are just that, a professional opinion. And that they should contact a physician in person to follow up on any questions they may have. I don't mind providing assistance when it's asked. Just be clear that people should contact a doc in person. I would love for any of the legal folks to chime in with regards to potential liability.

[300bar]

I'm not a medic in any way,nor a (US) lawyer but the disclaimer at the top of this forum sais.


Neither ScubaBoard's staff nor its members are able to provide accurate medical diagnosis over the internet. If you think you might be injured or have suffered any symptoms of DCS, you need to be evaluated by a doctor immediately. Please seek medical attention or call the Divers Alert Network (DAN) at 1-800-446-2671. For the international DAN telephone numbers, click here.
Won't this cover that.:confused:

[TSandM]

I almost always start with a disclaimer that you can't diagnose over the internet. I also often write that what I am saying is general information and not aimed at a specific case. I also encourage people to seek local care with someone who actually gets to SEE them. And then I don't worry about it. I work in an ER and I'm much more likely to get sued from there than from SB.

[wve]

In the early 1980's, in a letter to the editor in the New England Journal of Medicine I raised this same question about computer "bulletin boards" which were the precursors of today's internet forums.

The conclusion was that as long as the answer is something like one would find in a medical newspaper column -- that is, a general answer which does not specifically attempt to diagnose a particular person's problem or to give advice specific to the questioner -- then you are probably fine.

That seems to have borne out over the years.

I hesitate to ask, for fear of giving the lawyers any ideas, but has any doctor ever been sued successfully for participating in this type of format? For that matter, has any scuba instructor ever been sued for giving bad scuba advice in this arena?

[DocVikingo]

Hi diverdoug1,

As Saturation said, "Alas, nothing is guaranteed, so if you play, there is a risk of injury."

My disclaimer reads, "This is educational only and does not constitute or imply a doctor-patient relationship. It is not medical advice to you or any other individual, and should not be construed as such." Consistent with this, when I respond to an inquiry I keep my response general and educational and endeavor to avoid providing specific guidance to the poster. Where appropriate, I indicate that the poster's treating physician is the one to make the calls.

Other actions I take are to maintain only minimal malpractice coverage and spend most of my income on exotic travel and dive trips so that I'm really not worth suing.

Regards,

Doc

[Saturation]

In the early 1980's, in a letter to the editor in the New England Journal of Medicine I raised this same question about computer "bulletin boards" which were the precursors of today's internet forums.

The conclusion was that as long as the answer is something like one would find in a medical newspaper column -- that is, a general answer which does not specifically attempt to diagnose a particular person's problem or to give advice specific to the questioner -- then you are probably fine.

That seems to have borne out over the years.

I hesitate to ask, for fear of giving the lawyers any ideas, but has any doctor ever been sued successfully for participating in this type of format? For that matter, has any scuba instructor ever been sued for giving bad scuba advice in this arena?

I was wondering were I read that reference, so it was your letter? Most excellent.

As I suggested earlier, DAN has set the precedent for posting online FAQ and on paper as Dear? DAN on Alert Diver regarding medical questions. Also, columns in Scubadiving, particularly those run by Fred Bove, MD, who is well acknowledge expert in diving medicine set precedent for us.

In all UHMS, DAN, and other meetings I've had will more experienced dive-med docs, there is no recollection of litigation regarding this type of advice. This is particularly helpful anecdote considering that the dive industry per se, is very litigious. I still keep my ears open, because if a precedent did occur, I would cease all activity instantly.

[DocVikingo]

...because if a precedent did occur, I would cease all activity instantly.

Ditto.

Regards,

Doc

[diverdoug1]

Thanks for the info. guys! DocVikingo, I hope that you won't mind if I shamelessly plagarise your disclaimer.

[Peter Guy]

Just a quick review from the attorney standpoint:

In order to create liability, several things must exist:

a. An incident (accident) which lead to an injury;

b. The "proximate cause" of the accident must be related back to someone else;

c. That someone else must have a "duty of care" to the injured party; and

d. That duty of care must have been violated in such a way as to create a/the proximate cause of the incident.

IF you break any one of those chains, IN THEORY there is no liability (common law system). As a practical matter, it should be VERY easy to break the chain in at least one, if not all of the points. Thus the likelihood of being found liable for advice given out on the 'net should be extremely small.

Too often people forget there IS some logic to the tort system -- especially docs who think they have a target painted on their backs (and not without good reason).

[DocVikingo]

Hi Peter,

Thanks for providing the legal perspective.

The fine logic of the common law system notwithstanding, it should be noted that considerable money and anxiety may be expended in "breaking any one of those chains," even in cases that prima facie appear to be without merit.

It's easy for folks to forget there is some logic to the tort system given the media coverage of the continual flow of seemingly absurd and outrageous personal injury and kindred suits.

Regards,

DocVikingo

[Peter Guy]

Doc -- I know a lot of time and money may be expended in breaking the chain, which is why we all have liability insurance that covers legal costs. BUT, even though the docs don't necessarily believe it (as you know I'm married to one), plaintiff's attorneys also go through a significant screening process to determine whether to take a case -- in no small part because THEY have significant costs too.

It is my belief (based on nothing whatsoever except logic and faith in the system (misplaced though it may be)) that it is the very rare plaintiff's attorney who would attempt to sue a doc for "advice" they gave online in a Scuba forum. Why? Because the chain should be broken so easily and if broken so easily, it would not be worth the time and effort (remember also most people would NOT be in the same jurisdiction so there could be significant cost just from that).


Thus, unless your personal risk avoidance is really high, advise away.