BY JIM PURCELL

Eric Jones, the CEO of a large hospital, is at the end of a long day.  It’s 10 PM, he’s very tired, and has had his maximum of three drinks.  He’s checking his emails and sees one from Ralph Smith, CEO of a small community hospital, rejecting Jones’ offer to joint venture hips and knees.  The small hospital has rated tops in those categories, and Jones had hoped to achieve a quality and marketing coup by joining forces, perhaps as a prelude to acquisition.  This rejection was the last straw, particularly since Smith and Jones never had gotten on very well.  Immediately, Jones whipped off an email excoriating and libeling Smith and his hospital, misrepresenting what happened in negotiations, and threatening to “go to war” and “destroy” him and his hospital if they don’t “play ball.”

Think that far-fetched?  Nope.  Things worse than that have happened with astonishing regularity.  Assume that when Smith opens and reads that email the next morning, he then forwards it to his senior staff and the hospital’s litigation lawyer.  The lawyer confirms that it’s not only actionable for libel, but could constitute a violation of antitrust law, where damages can be trebled and attorneys’ fees recovered.

Then one of the small hospital’s senior staff decides to forward the email “without attribution” to one of his friends who is a local investigative reporter.  Two mornings later, the email, in its entirety with only obscenities deleted, appears above the fold on page one of the local newspaper, and a summary, with several choice quoted sentences, are run on local TV and radio news, just below a terribly unflattering photo of Eric Jones.

At that point, would you like to be Eric Jones?  Would you like to face his board of directors?  And the coming lawsuits, talk show commentary, blogs, etc.? Dust off the resume Eric.

We all use email.  Some 90% of Americans do today.  Some misuse it famously, as we see in the election cycle press every day, and with predictable results.  Because email IS different.  It’s not the same as a face to face discussion, or even a phone call.

Clearly, the ubiquitous use of email has blinded many of us to its dangers.  Accordingly, the purpose of this piece is to discuss some of those dangers via do’s and don’ts.  And for sure, healthcare is particularly apt for caution given that unauthorized disclosure of personally identifiable confidential healthcare information brings with it an avalanche of very nasty consequences.

Let’s first consider everyday business use of emails.  We start with the “10PM Rule.”  The 10PM Rule says: “Never, ever, send a confrontational or angry email after 10PM.  Ever.”   If it’s a really bad one, they’ll assume you were drinking or worse.  At best, you exercised poor judgment because you were tired and cranky, not exactly inspiring confidence either.  It even has a name:  “email flaming.”

Truth is you should try to avoid sending any confrontational emails.  Yet so many people avoid confrontations by using confrontational email as a substitute.  Face to face is so much better for more reasons than we have space to write. And once the email is sent, the recipient feels she MUST respond, usually in kind, to “set the record straight.”  And there is now a “record” for the world to see if it really wants to.

The temptation to copy others must be avoided.  Don’t make more of a spectacle out of yourself than you just did.  You’ve just turned what should have been a private discussion into a public washing of the dirty laundry.  Don’t make it worse.  Moreover, emails too often get missent, or miscopied; and those who were erroneously copied just love forwarding something juicy to their 50 best friends, and it becomes, how do we say, viral.  All a bad email needs is a single recipient who wants to do you harm by forwarding it to your regulator, your enemy, your competitor, your boss, or your spouse.

Arguments by email are the height of inefficiency.  Write, respond, write, respond, claim, counterclaim, and never resolve.  Tit for tat.  And, email is decidedly NOT the medium for extended discussion of complex issues.

And extremely important:  email causes misunderstanding all too often.  One does not see the sender’s face, expressions, and gestures, nor hear the tone of voice which is so important.  Tone, emphasis, and meaning count for much in communication.  A surprisingly high percentage of face to face communication comes from nonverbal, well over 50%.

And what about labelling it “confidential” or some such?  Meh.  That almost ensures it will catch someone’s eye or end up in the absolutely wrong person’s in box.  It also is one of the best ways to unintentionally waive the attorney client privilege if sent to the wrong person.

Emails never die and can always be retrieved, even if you’ve deleted them and your history, and crushed your computer with a sledgehammer.  Never die, get that?  Servers somehow retain them, despite best efforts to make them go away.  We also are reading all about that in the news during this election year.

So what do you do?  Try the following:

Avoid using email for:

• Confrontations
• Slurs or socially unacceptable commentary
• Judgmental commentary
• Jokes of any kind (I really mean this one)
• Confidential or sensitive business information, or privileged information, unless as advised by your attorney
• Write your emails with minimum use of adjectives and adverbs—stay factual
• Never, never use military or sports terms to juice up your point (in my organization, that was a CLM (Career Limiting Move)
• Write your email as if it WILL IN FACT somehow end up in the hands of your competitor, enemy, or the local newspaper, or Facebook
• Oh, speaking of Facebook, avoid business or sensitive personal communications there at all costs

If you have any doubts after drafting an email:

Keep it in draft and wait a day to reread it.  Your judgment might have improved.

Triple check that it is going to the right person and only that person.  Those chain emails have a nasty way of going to everyone despite your best effort to limit it to just one person.  I’ve been embarrassed in exactly that way.

Physician use of email can enhance communication with patients AND improve care.  After all, almost all Americans use and rely on email today as their primary communication tool.  But it’s tricky.  Many payors do not yet reimburse physicians for emails, so it’s not exactly a revenue driver, yet. But leave that aside.  If physicians decide they will use email because it enhances the relationship and the level of communication, they should consider the various legal and other risks and take the necessary steps to lessen those risks.

Patients who wish to communicate with their physician via email should be informed of the risks and sign a document whereby they assume risks inherent in email.  It would be well to seek legal advice for particular federal or state legal requirements or prohibitions.  State statutes on confidential healthcare information protection vary widely.  And there are HIPAA and HITECH, etc.

Note also that under HITECH, physicians are required to provide patients access to their information in the form and format requested by the patient.  That may well be electronically by email.  “Reasonable safeguards” must be in place to protect electronic transmission of such information.  So emails probably cannot be completely avoided.

As we’ve seen, it is impossible to absolutely guarantee the security and privacy of email.  Thus, all you can do is minimize the risks as much as you can.  Check for applicable guidelines (e.g., AMA).  Internal process should be adopted incorporating such guidelines.  If the practice has its own website, a secure website portal should be considered as the way to email.  Encryption also helps, but both parties must be able to use the encryption.

To summarize:  electronic communications can be wonderfully efficient, speedy, and practical in all sorts of contexts, including healthcare.  But please understand the risks inherent in its use, and take the common sense steps to protect yourself and others.