Online Medical Advice Raises Legal Concerns

In 1998, physicians, scientists and technology experts from around the world used remote medical equipment to safeguard the health of a team of climbers attempting to scale Mount Everest. Two years earlier, 11 people died while attempting the same without such telemedical help.

" Geo- Packs" measured the climbers’ surface and core temperatures, pulse rates and oxygen saturation levels as well as EKG and EEG levels through telemetry devices as they updated their locations. Three months later, physicians at the University of Colorado Health Sciences Center developed and implemented plans to make " house calls" to three Texas pilots during an attempt to fly around the world in a balloon.

With cyberspace being used for everything from making airline reservations to sending greeting cards, it’s not surprising that many consumers are turning to the World Wide Web for medical information and advice. And with more and more physicians hanging their shingles on the Web, lawyers monitoring their activities are sure to be the next link.

An estimated 70 million Americans accessed the Internet in 1999 to obtain health information. For instance, Mediline, The National Library of Medicine’s online database of more than 11 million references to health science journal articles, is a popular site for consumers.

Other sites, however, go a step further and offer medical advice and diagnoses. Founded in 1996, CyberDocs was among the first virtual medical offices to open. It advertised that " the doctor is always in."

A new patient logs onto CyberDocs.com and provides a medical history as well as the illness and initial reason for consulting the cyberdoc. A credit card number must the be provided with a routine visit running about $ 50. The cyberdoc then logs on and begins communicating with the patients online, which generally concludes with a discharge instruction. If the patient requires medication, a prescription can be immediately called into a local pharmacy.

But it is a quickly burgeoning field, going beyond dispensing prescriptions, to utilizing an electronic stethoscope equipped with a small camera to perform an examination in a rural location, to performing surgery from across the globe via fiber optics and highly sophisticated robotic equipment.

All of this may be viewed as cost saving, particularly as Americans see that health maintenance organizations apparently are unable to harness escalating costs. But what does all this mean when something goes wrong?

Many legal issues spring from this new dimension of patient care. Confidentiality, interstate licensing restrictions, jurisdictional questions, abandonment of a patient when he can’t reach the cyberdoc, technological transmission errors or failures, lack of nationwide regulations, disciplinary procedures, standards of care, informed consent, failure to warn- these are just some of the issues that come to mind and that remain unanswered as this quiet revolution takes place in a borderless domain.

In the malpractice arena, cases have yet to surface to establish a pattern.

One of the key issues, though, is whether a physician-patient relationship has been established. As in any medical obligation situation, the plaintiff must establish a duty by the doctor to act according to certain standards, a breach of the applicable standard of care, an injury to the patient and a causal connection between the breach and the patient’s injury.

When communicating with a faceless patient in cyberspace, however, the answers become a little more tricky, involving the degree of contact the patient had with the consulting doctor and the expectation of the patient.

Telemedicine initially has been analogous to telephone consultation cases to determine whether the doctor-patient relationship had been triggered; but it really is highly distinguishable from cybermachine, where a credit card payment arguably triggers a contractual relationship.

Take, for instance, a case in Illinois involving whether a telephone call of one doctor consulting with another regarding treatment options for a patient amounted to a relationship being established with the consulting physician. In Reynolds v. Decatur Memorial Hospital, 277 Ill. App.3d 80, 660 N.E. 2d 235 (4^th Dist. 1996), the court held that because the physician never spoke with the patient, such a relationship was never established.

Certainly, the Internet can be an important tool to provide rapid, cost- effective and up-to-date medical information to a great number of people, particularly those in rural areas who may not have access to highly trained specialists. However, the response of the medical and legal communities to virtual house calls. cyber- medical consulting, videoconferencing and health care chats indicates a wrong without an appropriate remedy may be possible if some forethought is not given to expanding current legal doctrines.

A national data bank where cyberdoctors must first register would serve as an initial gatekeeping function. It could be patterned after a law passed Jan. 1, 1999, in California, which allows the public to access to physicians’ histories over the Internet. The American Medical Informatics Association established in 1998 guidelines for physician-patient communication via e-mail, and the American Medical Association approved guidelines at its 2000 annual meeting regarding electronic mail to patients, CH-478.99.

A flurry of bills regarding health information and privacy have been introduced in Congress, but at the forefront is Sen. Kent Conrad, D-N.D., who introduced the Comprehensive Telehealth Act of 1996, which allows for Medicare reimbursement for satellite video specialists to communicate with certain patients in rural comminutes where there are designated shortages.

The types of services and communities as well as the type of provider was expanded with the passage Dec. 15 of H.R. 45777. Conrad also founded the Congressional Ad Hoc Steering Committee on Telemedicine, which provides an annual bipartisan focus group on such health care issues.

Although now it is estimated that only 25 percent of the medical community utilizes some form of Telemedicine, that figure is sure to escalate in our technology-driven society. A May 1999 study by the Internet health giant Healtheson found that one-third of doctors were using e-mail to interact with their patients, up 200 percent from the previous year and up more than 1,000 percent from 1997.

Is cybermedicine more an opportunity than a responsibility for physicians in the new millennium? If physicians are advancing their knowledge, it can be of great benefit. But if dispensing of advice becomes nothing more than take two aspirin and e-mail me in the morning, we can look forward to the rapid depersonalization of the practice of medicine and an erosion of the physician-patient relationship.

Lawyers as well as physicians must be watchful that the quality of care is not being compromised in an effort to protect all patients.