Compromising Statements in Text Messages Complicated Defense of a Malpractice Claim

Texting can blur traditional patient-physician boundaries. The loosening of social inhibitions in the online environment often allows people to behave differently than they would in person, a phenomenon known as the online disinhibition effect.

In the following case, the physician assistant (PA) had a longstanding treatment relationship with the patient. Their text messages to each other interspersed personal and treatment information. Over the years, the text messages took on a casual, conversational tone that reflected the friendship the two women had developed. When the outcome of the patient’s treatment was not as expected, the PA responded to the patient in her role as a friend, instead of her role as a healthcare professional, which complicated her defense in the malpractice lawsuit the patient filed against her.

Case File

Issue: The PA’s tone and content of her text messages complicated her defense.

The patient presented to a medical spa for various treatments over many years. She requested and was treated by the same PA at each appointment. During a laser hair removal session, she suffered a third-degree burn on her upper lip. Despite treatment at the medical spa, and later by specialists, the patient sustained permanent scarring. The patient and PA communicated almost exclusively by texting before and after the treatment that resulted in her injury. For example, in response to a photograph of the burn the patient sent to her, the PA texted: “I’m so sorry. That looks terrible!” and later that day, “I’ve never seen a burn that bad.”

A month later, in response to the patient’s texts about the burn not healing as expected, the PA texted: “This is all my fault. They refunded your money, right?” When the patient indicated she had not yet received a refund, the PA responded that she would write a personal check to cover the amount, if the patient would sign a release of liability. The patient ultimately received a full refund from the medical spa. The patient never responded after the PA’s offer, and then filed a malpractice suit against the PA and her supervising physician alleging negligent laser treatment caused permanent scarring.

Discussion

Defense experts believed, based on discussions with the PA and the documentation in the medical record, the laser hair removal was conducted in a manner that met the standard of care. However, neither were there signed informed consent documents for the laser procedure in the file, nor was the informed consent process documented in the patient’s record. The PA indicated, however, that it was her standard practice to discuss the risks of laser hair removal with patients, and the risks would have included burns and permanent scarring. The patient denied that the risks of burns and scarring were discussed with her. If the case went to trial, determination of whether informed consent occurred would essentially depend on who the jury believed on the issue of accepting the risks of burns and scarring—the patient or the PA.

Regarding the text messaging, plaintiff’s attorney contended the PA admitted liability on multiple occasions in her text messages to the patient. Plaintiff’s attorney further contended the refund of fees in fact and mentioned in the text messages from the PA were further evidence of the defendants’ acknowledgment of their own negligence.

The combination of compromising text messages and lack of informed consent documentation significantly complicated the defense of this claim.

Risk Reduction Strategies

Consider the following risk reduction strategies:

• Maintain appropriate clinician-patient boundaries and professional decorum.
  • Do not mix professional and personal issues in text messages.
• Take a conservative approach in text messaging with patients and self-check texting disinhibition.
  • Avoid humor, sarcasm, slang, and emojis.
    • The patient may not pick up that a comment is sarcastic without accompanying body language and in-person facial expressions.
    • The situation may not be humorous from the patient’s point of view.
  • Do not attempt to manage a refund request via text messaging.
    • Because of the potential complexity of a refund demand, it is a good idea to obtain input from the Risk Management Department or the Claims Department when patients demand refunds and reimbursements following an adverse outcome or event.
  • Do not attempt to manage and respond to an unanticipated outcome via text messaging.
    • Be careful with apologies.
      • Do not admit or imply culpability when discussing an unanticipated outcome with a patient.
      • Obtain input from the Risk Management Department or the Claims Department to obtain assistance with responding to an unanticipated outcome
      • Know if your state has an “I’m sorry” law and, if it does, know the extent of its protections. (See the Claims Rx issue Responding to Unanticipated Outcomes: First Conversations for additional information.)