Virtual Health Care: Unresolved Legal Issues

As online health care begins to look more like the practice of medicine, a range of legal questions has emerged. This article examines issues of concern to both Internet users and health care practitioners, focusing in particular on the laws relating to negligence and disclaimers. It concludes that interactive contact between doctor and patient in cyberspace may very well be viewed by the courts as akin to the practice of health care and that the typical disclaimer may not insulate practitioners from liability.

In many ways, the United States is moving rapidly toward computer-based health care. For those who are already connected to the Internet, the online world seems to have become a gold mine of interactive health-related information and activity. Chat rooms and newsgroups engage people in online discussions about their respective health problems, and participants are encouraged to share valuable personal information. Individual doctors exchange e-mail messages with their patients, sometimes tying their conversations to the results of simple tests that patients can perform by themselves at home. And prototypes for combining e-mail with video -- enabling patients to actually show doctors their physical symptoms -- are in various stages of development.

Most virtual health care is Web-based. Web sites in this area have proliferated, focusing on everything from well-known diseases to highly obscure health conditions. It has been estimated that at least one-third of all searches on the Internet are health-related.

As more people come to rely on the range of health care resources available in cyberspace, a variety of new concerns have emerged. Indeed, both online users and health care professionals have reason to be concerned about a number of very tricky issues that have legal implications.

First and foremost, to what extent should online users even be able to rely on virtual health care today? How accurate is the information? How timely is it? What sort of quality control is or is not at work here? Veteran net users know that the time-tested rule of caveat emptor (let the buyer beware) applies to everything on the Internet, and nothing is taken for granted. But there is something about the printed word coming onto the computer screen in a manner akin to a television broadcast that leads people to believe that the information has greater validity than words on a flier distributed by a stranger on a street corner. And with the Internet gaining in stature as a place to conduct research of the most scholarly nature, people tend to lose sight of the fact that much of the material posted online may be even less reliable than those fliers distributed by strangers.

Next, what are the respective responsibilities of the online health care providers and the online users? What precautions must be taken? Should people approach online interaction in the same way that they approach day-to-day communication in clinics and hospitals, or are there different realities at work in cyberspace that would require additional precautions on both sides?

Finally, what ability might online users have to prevail in a lawsuit if they are injured or their condition deteriorates as a result of the online interaction? Should health care professionals in virtual clinics and hospitals be as sensitive to malpractice concerns as they would be in the real world? What about the role of insurance companies? Would standard medical and dental malpractice policies cover doctors who provide advice online? Should these policies cover such actions? Is virtual health care really just another way for health care professionals to practice their profession, or is it something completely different?¹

Online Regulations

If online health care were regulated in any way, then the answers to these questions might be found in published guidelines. But specific regulations have yet to be written. Relevant laws in related areas might be consulted, but these doctrines come from a different era, when most people could not even imagine such a thing as cyberspace. For some, it does not matter that the authors of current legal doctrine did not have the online world in mind. Laws are laws, the argument goes; and the principles can be applied to any new technological development that comes along. For others, however, cyberspace is the proverbial new frontier, and only a new legal structure would be appropriate.²

In any case, whether or not new laws and regulations are written, disputes are bound to arise; and lawsuits are bound to be filed. One area that is always particularly ripe for such disputes is the area of negligence.

Information vs. Care

From a legal perspective, it may be very important to determine ultimately whether the Web site, newsgroup, bulletin board, or chat room is characterized as information or care. If it is viewed as information, then it may be much harder to show that the online provider was negligent or that any unauthorized practice of health care took place. Statements or documents posted on the Internet might then be viewed by the public as no more or less reliable than a private conversation or articles in newspapers and magazines. However, if the online interaction is characterized as care, then negligence or unauthorized practice of health care might be much easier to demonstrate.

Negligence

Most lawsuits currently filed against health care professionals are based on negligence law. Negligence is not typically a crime, but simply a civil wrong (a tort) that our legal system has recognized. If someone is injured, he or she can often win significant monetary awards if the other side is found negligent in a court of law or if a settlement is reached out of court.

Under negligence law, every person owes every other person a duty to act reasonably. The standard of care for such reasonable action varies depending on the circumstances. Thus what might be reasonable in an emergency might not be reasonable in normal circumstances. And professionals are typically held to a higher standard of care. Thus, the level of care that doctors provide is measured objectively against the level of care that an ordinary reasonable (or average) doctor would typically provide to a patient. If the doctor’s actions fall below this level, and the patient is injured or his or her condition deteriorates as a result of these actions, then the doctor can be found negligent.³

Standard of Care

What should the standard of care be for health care professionals in the online world? Should they be held to the same standard as any ordinary citizen who posts information online, or should they be held to the higher standard of a doctor interacting with a patient? From a legal perspective, this is a very important question, because if they are held to the higher standard, it will often be much easier to find them negligent if injuries occur as a result of their action or inaction.

Many additional questions will also arise in this context. For example, what is the standard of care that we might expect under the law from an ordinary citizen who posts information online? Does a person who sets up a Web site, for example, have an obligation to check the validity of all factual statements he or she might post? At what point is it the responsibility of the online user, and not the Web site owner, to ascertain the truth? Should it depend on the nature of the Web site? Should it depend on who the Web site owner is? Will people be expecting more from an apparent expert posting information online than they might from, say, a high school student posting information online? Should there be any difference under the law?

And even if health care professionals are held to the higher standard of doctors interacting with patients, should this standard of care be the same in the online world as it might be in a clinic or a hospital? Are people going to expect doctors to be as careful and correct in the virtual world as they are in the real world? Should it depend on the nature of the interaction? Will people be expecting more from health care professionals who answer questions and perhaps even view videos of their conditions than from those who simply post standard boilerplate advice in newsletter format online? At what point might online care be seen as equivalent to real-time care? These are the sorts of questions that are currently being debated, and the answers will go a long way toward determining the nature and extent of liability in this setting.

Online Disclaimers

Virtual health care providers are clearly concerned about negligence, and these concerns have led many of them to include disclaimers on their Web sites. The disclaimers vary in form and content, but they all admonish the online patient not to rely on what is being presented. Advice may be given, but the recipients are then told that they should not consider it to be advice. The home page of the Dr. Robbins Headache Clinic, for example (www.headachedrugs.com), presents Internet users with a simple table of contents that includes "medications," "patient’s corner," "general advice," and "headache herbs." It then states:

"This Web page is not for treatment or therapy; you should not act on any of this advice without the advice and consent or your physician. … This site is opinion only and does not represent treatment or standard therapy."

"Ask Dr. Weil," a much more elaborate corporate site that features a variety of resources and a detailed answer to a single anonymous question (cgi.pathfinder.com/drweil/home), includes the following at the bottom of the home page:

"Disclaimer. All material provided in the Ask Dr. Weil program is provided for educational purposes only. Consult your own physician regarding the applicability of any opinions or recommendations with respect to your symptoms or medical condition."

The Massachusetts General Hospital Neurology Department Web site -- an elaborate, interactive site that includes Web forums and chat rooms where doctors post responses and answer questions in real time (http://neuro-www.mgh.harvard.edu/) -- contains an intricate and sometimes contradictory disclaimer page. At one point, the hospital indicates that:

"Any information posted by MGH physicians is not medical advice and should not be taken as medical advice. Information posted by MGH physicians must be recognized as personal opinions only. To obtain medical advice, patients must consult an MGH physician one-on-one (telephone, official visit, or private email)."

At another point on the disclaimer page, however, the systems operator says that "These forums are not designed to be places where you can get unlimited medical advice." This might suggest that, contrary to what is expressed in other paragraphs on the page, officials recognize that at least some medical advice is dispensed on this site -- albeit not in an unlimited fashion.

The most aggressive disclaimers actually attempt to build in a contractual agreement between the online user and the virtual health care provider. For example, "YourHealth.Com" -- a commercial site focusing on preventive care and fitness (www.yourhealth.com) -- includes the following disclaimer:

"All information on this site is intended for your general knowledge only and is not a substitute for medical advice or treatment for specific medical conditions. You should seek prompt medical care for any specific health issues and consult your physician before starting a new fitness regimen. Use of this online service signifies your agreement to the disclaimer and the terms and conditions, which you should read, or have read before going further."

Legal Impact of Disclaimers

Disclaimers all sound very legal, and it is tempting for Web site owners to believe that by simply including such boilerplate language they are insulating themselves from liability. Yet the legal impact of disclaimers has emerged as one of the most significant questions in this area of cyberspace law, and the answers are not as clear as many would hope.

As a general rule, a person cannot avoid liability by simply declaring that what he or she is doing is not really what people think he or she is doing. Thus a lawyer cannot avoid liability by saying he or she is not really representing a client when in fact he or she is really representing a client. An architect cannot avoid liability by saying he or she is not really designing a house when in fact he or she is really designing a house. And a doctor cannot avoid liability by saying he or she is not practicing medicine online when in fact he or she is really practicing medicine online.

Of course, it is still not clear whether even the most interactive health care sites are the equivalent of medical practice. And whether or not disclaimers will insulate a Web site owner from liability may very well depend on how the legal system ultimately characterizes such online activity.

From a legal perspective, virtual health care can be seen as analogous to at least three different categories of activity -- each with its own set of rules for determining liability. Under one scenario, online health care would be viewed as a product, and any resulting injuries would be analyzed under the well-established rules of products liability. Under a second scenario, interactive health care Web sites would be deemed analogous to medical practice itself and subject to the same rules of negligence that apply whenever a doctor sees a patient in his or her office. Under a third scenario, the health-related sites would be viewed as little more than information, subject to the detailed law of negligent misrepresentation if anyone gets hurt.

Disclaimers and Product Liability

In product liability law, attempts by manufacturers to disclaim liability for injuries are typically invalid.⁴ At first glance, this may appear to be a poor analogy to virtual health care, since medical Web sites would seem to be a service rather than a product. But the line is often blurred between products and services in this area of the law. A product is defined as "something produced by physical labor or intellectual effort or something produced naturally or as result of natural process as by generation or growth."⁵ Arguably a Web site or chat room -- which is essentially a form of software -- can qualify under this definition, particularly since software has itself been recognized as a product under the law. In the end, however, the analogy might break down because injuries in this context must occur as a result of a defective product. And with a health care Web site or a chat room, injuries are likely to result from incorrect information rather than from defective software.

Disclaimers

A more appropriate analogy, of course, would be to health care practice itself, especially when doctors go online and either participate in chat rooms or post answers to questions. And some doctors are actually beginning to charge money for these services. Increasingly, such online services are being viewed as the equivalent of "telemedicine," which is defined by the American Medical Association as "medical practice across distance via telecommunications and interactive video technology."⁶ Experts are in fact predicting that by 2002 "90 percent of telemedicine will be done on a multimedia e-mail format, and consultations will be done in real-time using Web technology."⁷ And the current research into Internet2, a high-speed next-generation Internet for academic and research institutions, is "expected to allow for digital libraries that feature streaming high-fidelity audio and video content, and give way to telemedicine, including remote diagnosis and monitoring."⁸

It may be that the analogy to health care practice will depend on the nature of the interaction provided, with some sort of sliding-scale test being used by the courts. Passive information alone may not qualify as medical practice, while the use of digital images -- which might range from snapshots exchanged via e-mail to more elaborate video streaming -- would be seen as the equivalent of telemedicine and would therefore qualify as health care practice. Simply answering questions online might be viewed as somewhere in the middle.

Charging money for online services might be an additional variable. It may be that courts will decide that only those practitioners who charge for their services can legally be viewed as practicing health care for purposes of upholding disclaimers. Under this view, those who are simply providing the online information for free can legally disclaim liability.

Negligent Misrepresentation

Members of the health care professions might argue that virtual health care amounts to nothing more than the providing of information. Under this view, nothing online can take the place of an office visit, and any exchange -- active or passive -- would be seen as a form of patient education only. Injuries or other negative results of relying on this information would then be analyzed under the "gentler" laws of negligent misrepresentation. Plaintiffs have a much harder time winning lawsuits in this context, and disclaimers have a much better chance of standing up in court. Online users who are injured as a result of their reliance on the information would probably have to prove that this reliance was reasonable under the circumstances. Virtual health care providers who have included disclaimers on their Web sites might be able to insulate themselves from liability even if they are found to be negligent. Ultimately, this analysis might depend on the nature of the negligence and the precision of the disclaimer language.

Unless and until specific regulations are adopted or disputes resulting in lawsuits are brought before the highest courts in the land, these issues will remain unresolved. In the meantime, health care practitioners must be aware that as the technology continues to improve, online interactions between doctor and patient will begin to look more and more like the practice of health care to the courts. Disclaimers may help in certain instances, but they should not be relied upon to insulate doctors from liability. In the end, the responsibilities of health care professionals are likely to be the same, whether the contact is in virtual time or in real time.

Author

Stuart Biegel, JD, is a senior lecturer at the Graduate School of Education and Information Studies at the University of California at Los Angeles School of Law.


References

1. Terry NP, Cyber-malpractice: legal exposure for cybermedicine. Am J Law Med 25(327), 1999.

2. Goldsmith, JL, Against cyberanarchy. University of Chicago Law Review 65(1199), 1998.

3. Keeton WP, Prosser and Keeton on the Law of Torts, 5th ed. West Publishing Co, St Paul, 1984.

4. McVey v. Phillips Petroleum Co, 288 F.2d 53 (5th Cir, 1961).

5. Minnesota Power & Light Co v Personal Property Tax, Taxing Dist, City of Fraser, School Dist No 695, 298 Minn 64 182 NW2d 685, 691 (1970).

6. Harris TR, Lukemeyer G, Evolving impact of telemedicine. Joint Report of the Council on Medical Service and the Council on Medical Education 1994, at 2.

7. Sanders J, The revolution in health care delivery. North Dakota Law Review, 73(19), 1997.



To request a printed copy of the article, please contact/Stuart Biegel, JD, UCLA Graduate School of Education and Information Studies, UCLA School of Law, 2031 Moore Hall, Los Angeles, CA 90095.