Image of a laptop showing a doctor holding a stethoscope. Telemedicine abstract.

How to Think About Prognosis by Telemedicine

Recently in these very pages, Evan Selinger and Arthur Caplan responded to an article in which Joel Zivot defended the use of telemedical technologies in informing patients and their families of dire news, in the context of the viral story of a doctor informing the family of Ernest Quintana of his imminent death via robotic video-link. Zivot argued that the use of technology to deliver such news is not the problem and what matters is the communicative skills of the physician. Selinger and Caplan respond that patients have basically different views on the propriety of using technology in these ways, and urge a regime of informed consent.

Selinger and Caplan are probably right on the short term policy question.

While we know there is a great deal of diversity in whether people think using telemedicine in this way is disrespectful, there is also no obvious answer among the alternatives. Warning people that this might happen and letting them opt-out, then, offers a short-term way to respect people’s preferences. And, as Selinger and Caplan acknowledge, that may be all that is needed. Over time, communication like this may become as anodyne as today it seems avant-garde.

But informed consent is in this case something of a stop-gap.

And Selinger and Caplan’s argument doesn’t offer insight into what will become the all-important question of the default rule: of course patients should be allowed to express preferences if they have them, but should the presumption in their absence be that serious conversation via video link is acceptable or disrespectful? To answer this question, we need to consider the issues that Zivot does. We need to think about what matters in telling people that they’re dying, and whether and to what extent telemedicine can be the equivalent of in-person communication in this regard. Zivot may be right on this, but he may be wrong.

There are two essential questions in this inquiry.

The first is about what matters in telling people and their family members that they are dying. This is a normative question. It is an extremely difficult one without obvious answers. Much has been written about it in bioethics, and it is possible that there simply is no good way to tell patients the truth about their fate. House, M.D.’s Dr. Wilson is reported to have been so good at this that people would thank him when he told them they were dying. But Dr. Wilson is a fictional character.

We know, however, that there are bad ways to tell people that they are dying. It is inappropriate to laugh while you are doing it, inappropriate to attempt to use the moment as a teaching opportunity in your particular brand of misanthropy. The situation demands a certain gravity. This fact, that some methods of communication are morally better than others, demands theorization even if such a theory cannot provide a single script of what and how to say. Zivot assumes that what matters in these situations is that doctors are able to “make a connection, provide information, and demonstrate compassion.” Maybe, but perhaps all that matters is the information. Ripping off the Band-Aid, and all that. Perhaps a demonstration of compassion is not enough and something deeper is required. I don’t know. But before we can assess whether technology can preserve what we care about in telling people they are dying, we need a theory of what we care about.

The second question is empirical, and it is a question about the extent to which technologies can in fact accomplish certain things. Of course, in principle, technology can do anything. The question is more acutely whether in the short term and under the current limitations of technology and human biology video-conferencing can be the equivalent of in-person communication in certain relevant ways. As Zivot points out, we are not actually yet dealing with actual robot doctors.

There are plausible reasons to be skeptical of the notion that current video conference technology can be an adequate substitute for in person communication, and to believe that these limits are not merely a relic of a lack of exposure. For example, Zivot describes as an inconvenient fact about videoconferencing technology that he cannot offer a hug or handshake to those he is hoping to comfort. But this may be a problem deeper than inconvenience. Human social touch has deep evolutionary roots and profound meaning in our experiences. The inability to offer physical comfort could inevitably make a video-conference verdict of death much harder than one offered in person. Of course, if this is true, it could still be the case that video-conferencing would be better than the actual alternative in particular cases (perhaps for people who live far away the alternative would have been a phone call), but this would not make video-conferencing the moral equivalent of an in-person conversation regardless of the communicative skills of the physician.

The answers to the empirical equivalence of video-conferencing and in-person communication are similarly not obvious. Indeed, while we know that new technologies do widely replace previous forms of communication, they often don’t do so wholesale, and a place for older forms remains. Texting is ubiquitous; breaking up with someone over text is generally frowned upon. This is because it is empirically easier to hurt someone with a carefully crafted text than unscripted in person. And in love we care about recognition of and respect for the other person as in medicine we may care about compassion. Breaking up with someone over text is usually wrong because texting is not empirically equivalent to in-person communication in the ways that normatively matter to breaking up.

The same analysis needs to be done with respect to the use of video conferencing and other technologies to convey tragic news. But, I think, this discussion will be harder and won’t be answered by easy arguments that everything will be the same or in nihilistic philosophical deference to individual choice. Breakups are hard. Deaths are harder.


James Toomey is a 2018-2019 Petrie-Flom Center Student Fellow. 


James Toomey

James Toomey is an Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University. Prior to joining the faculty at Pace, James was a Climenko Fellow & Lecturer on Law at Harvard Law School. His scholarly work has appeared in the Virginia Law Review, the North Carolina Law Review, the Harvard Journal on Legislation and more.

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