Medical advice on the Web: What are the issues?

Historically, people sought medical advice and treatment on a local basis, from a trusted family physician or a nearby hospital. Consequently, the medical profession has typically been regulated by local statutes or by the common law of medical negligence.

All that may be changing now that the Internet is firmly established in our daily lives. New information technologies are enabling physicians to provide advice, and even prescribe medicine and treatment options, at great distances from their patients.

According to the market research firm Cyber Dialogue, Inc., based in New York City, the sixth most common reason people access the Internet is to conduct research about health issues. Experts agree that the legal system must adapt to meet the issues raised by "virtual house calls."

"The challenge health lawyers are facing is to radically reengineer our quality assurance and related laws to take account of the impact of the Internet," said Nicolas Terry, a professor at St. Louis University Law School and a leading expert on health law in cyberspace.

Terry said that while few lawsuits have been filed based on allegations of "cyber-malpractice," the effort to set standards for medical advice over the Internet will be relevant in any future cases that arise.

Already, Terry said, the Federal Trade Commission has entered consent agreements with some Web sites that have allowed physicians to prescribe drugs to visitors to the sites. (Internet Pharmacies: Who's Minding the Store?, TRIAL, May 2000, at 12.)

"There's a bit of a disconnect in that the enforcement dollars and regulatory activities tend to be at the federal level, while unprofessional activities by individual practitioners still come to the attention of state governments and boards, which may have little money" for enforcement efforts, Terry said.

As more physicians venture onto the Web, issues of professional responsibility are sure to arise. "You have to wonder how accurate a diagnosis can be in the absence of physical examinations and diagnostic testing, which play such an important role in medicine," said Dov Apfel, a Rockville, Maryland, attorney who handles medical negligence cases.

Four crucial questions are raised by so-called telemedicine: When does a physician-patient relationship come into being during a telemedicine consultation? What jurisdiction can health providers be sued in? Will physicians continue to be held to a local standard for the quality of the health care they provide, or will a national, or even international, standard take over? And how is the Internet changing physician licensing requirements?

Not all health-related inquiries on the Internet will qualify to create a physician-patient relationship, experts say. "Many medical treatments today are standardized, and could be placed on a Web site without raising issues of professional negligence," said Doug Peters, a medical negligence attorney in Detroit. But when a health care provider begins offering specifically tailored advice to particular individuals over the Internet, liability issues arise.

In 1998, a New York court was asked to consider whether a physician becomes liable to a patient by offering advice over the telephone to the patient's primary physician. The court found that a physician-patient relationship could be established by a telephone call, when the call "affirmatively advises a prospective patient as to a course of treatment" and it is "foreseeable that the patient will rely on the advice."

The physician had testified that he had discussed the plaintiffs injury with an assistant in the primary physician's office and had given specific instruction regarding medication during the phone call. The court found that a relationship had been established that could support a professional negligence action. (Cogswell v. Chapman, 672 N.Y.S.2d 460 (App. Div. 1998).)

Courts could easily apply similar reasoning to the question of whether a telemedicine consultant met applicable standards of diagnosis, informed consent, and treatment, Peters said. To avoid liability, a physician giving advice on the Web "would be obligated to include serious disclaimers on the site, noting that the advice being given was general," he explained.

Peters also said that advice from unqualified sources on the Internet may give rise to more litigation and more regulation. "Agencies like the Food and Drug Administration came into being to deal with real quackery," Peters noted. "An explosion of unreliable medical information on the Web could cause a similar regulatory response."

Jurisdiction

The first key issue that will face a lawyer who takes a telemedicine case will be where to file the lawsuit. Lee Goldsmith, an attorney in Englewood Cliffs, New Jersey, pointed out that California has enacted a statute making practitioners of medicine who give advice to Californians liable in California courts.

In 1998, a Kentucky resident filed suit against the prestigious Mayo Clinic, based in Rochester, Minnesota. A federal court ruled that the contacts between the clinic and Kentucky were not strong enough to allow a Kentucky court to exercise jurisdiction. It reached this conclusion even though one of the clinic's subsidiaries maintained at least two Web sites explaining how to set up appointments at the clinic and allowing users to submit questions about the treatments available there.

The critical fact, the court found, was that the clinic had made no effort to advertise or to solicit business in Kentucky for any of the health care services it offers. The court noted that the clinic did offer "telemedicine," which it defined as "telephonic, video, or computer-aided methods of providing medical support or education." But the plaintiff had offered "no specific evidence that telemedicine services had been provided in Kentucky." (Bradley v. Mayo Foundation, No. CIV.A. 97-204, 1999 WL 1032806 (E.D. Ky. Aug. 10, 1999)).

Decisions like this indicate that courts will continue to apply traditional principles of civil procedure and look at whether health care providers on the Internet actively solicited patients in a particular state through their Web sites. If so, the probability of their being subjected to that state's long-arm statute is high, Goldsmith said.

Standard of care

A physician has traditionally had a duty to provide health care of a quality that a reasonable physician practicing in the same field and locality would provide. But the Internet allows physicians and patients to access information from a wide array of sources, which raises the question of whether a national standard of care is more applicable.

Another alternative is for the standard of care to be the one that is applicable to the patient's jurisdiction, since that is where the medical advice is in fact being applied.

"It's an increasingly artificial premise that physicians are only practicing medicine within state lines, and yet changing [the state] system of regulation will take a great deal of time," Terry said.

The Portland, Oregon-based group Telemedicine Research Center has established a Web site called the Telemedicine Information Exchange, aimed mostly at medical providers and their attorneys (http://tie.telemed.org). The Web site warns practitioners that if they practice over the Internet, they may be held to a different standard of care than they are otherwise used to.

"The particular circumstances under which a physician practices are not irrelevant, but acceptance of national standards for diagnosis and treatment is increasing," the Web site warns its readers. "Whether a diagnosis made via telemedicine will be held to the same standards of care as one made in person will depend on available alternatives, sophistication of the technology, and patient expectations."

Licensure

Requiring physicians who dispense advice in cyberspace to be licensed in every state where their advice is considered may be a significant hurdle to the further development of telemedicine, but no one is advocating a relaxation of the scrutiny to which these life-and-death matters are subjected.

The U.S. Federation of State Medical Boards has proposed a model act that would regulate the practice of medicine across state lines. The goal of the act, according to the federation, is to protect patients from incompetent physicians without restricting access to telemedicine services.

The act requires physicians who want to practice telemedicine across state lines to obtain a special license issued by the medical boards in which they have their primary practice. Licensees would be subject to laws and regulations of patients' home states with respect to duty of care and confidentiality of records. They would have to agree to make themselves available to the medical board of the state where their advice was taken if any dispute arose about the quality of care that was delivered.

Drew Carlson, a spokesman for the federation, said that six states have adopted the model act: Alabama, California, Montana, Oregon, Tennessee, and Texas. Another 11 are actively considering it, he said.

Licensing issues could interfere with recovery in a telemedicine case. Most malpractice insurance policies exclude coverage for unlicensed activities. If a physician provides telemedicine services in a state in which he or she is unlicensed and that state requires full licensure, the insurance company could deny coverage.

Another issue lawyers must keep in mind when attempting to recover from entities operating Web sites is the extent to which Internet activities are immunized from liability by federal law. In 1996, Congress enacted the Communications Decency Act, which contained a section (now codified at 47 U.S.C. [sections] 230) providing that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This part of the statute was unaffected by the U.S. Supreme Court's 1997 decision striking down much of the act.

As Professor Terry observed in a recent article, this provision means that telemedicine sites that merely post content provided by others may well be immune from tort liability. (Nicolas P. Terry, Cyber-Mal-practice: Legal Exposure for Cybermedicine, 25Am. J. L. & Med. 327 (1999).) But, he added, when the host of the site is also the author of its content, the site could be held liable for any harm that resulted from Web users relying on that content.

Attorney Goldsmith said that lawyers interested in keeping up with the latest developments in this field may want to subscribe to Telemedlaw, a quarterly newsletter that focuses on federal and state legislation, reimbursement, liability, and licensure. It is published by Legamed Publishing, Inc., of Raleigh, North Carolina.