New Jersey Law Journal May 6, 2013
By Jonathan Bick Bick is Of Counsel at Brach Eichler LLC in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000)
Law governing medical malpractice addresses professional negligence through act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes harm to the patient. By in large, these laws were enacted with traditional medicine in mind, consequently, malpractice involving medical error is evaluated by standards and regulations related to traditional medicine. The risk of applying traditional standards to e-health transactions is both finding medical malpractice when none exists and failure to find medical malpractice when appropriate.
Generally, e-health is the application of medicine via the Internet. The Internet as defined by the United States Supreme Court is an international network of interconnected computers (see Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)). Thus, combining this definition with the practice of medicine, suggests that e-health and hence e-malpractice would cover medical professional errors related to any health services and information delivered or enhanced through the Internet and related technologies.
From a medical service provider’s perspective, e-health is simply the use of the Internet to communicate with patients. Typically, e-health providers have established e-mail exchanges where a visitor to the website can submit questions to medical professionals and have these questions answered.
Since these e-health transactions have been analogized to medical call centers, and medical call centers have been the subject of medical malpractice litigation for years, the courts have significant experience to draw upon. Accordingly, courts are likely to use standards and regulations designed to address traditional medical malpractice and currently applied to call centers to e-health transactions.
However, medical call centers - e-health analogy is somewhat faulty. The chief difference is the technology upon which each transaction is based. A medical call center a nurse interacts with a patient via phone to evaluate symptoms. An e-health medical service provider interacts with a patient via a computer to evaluate symptoms.
A traditional call center medical provider has more opportunity to identify a patient due to phone ID services and by listening to the caller than an e-health medical service provider has by reading text or looking a photo of a wound. Arguably, such differences enable a tradition call center medical provider be better able to reduce errors associated with erroneous identification than an e-health service provider counterpart. For example, a traditional call center medical provider can generally differentiate the voice of a female child from an octogenarian male and ameliorate malpractice related activity.
Other differences exist between a traditional call center and an e-health service provider, including the fact that a typical traditional call center transaction involves a single jurisdiction, whereas a typical e-health transaction involves more than one jurisdiction.
Jurisdictions vary on the elements necessary for medical malpractice. In New Jersey, the plaintiff must show a relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries ( see Chin v. St. Barnabus Med. Ctr., 160 N.J. 454 (1999)). In the treatment of a patient, a physician has a duty to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the professional practicing in the field (see Schueler v. Strelinger, 43 N.J. 330 (1964)). Whereas in Pennsylvania, medical malpractice involves proof of a duty owed by the physician to the patient, a breach of duty from the physician to the patient, that the breach of duty was the proximate case of, or a substantial factor in, bringing about the harm suffered by the patient, and damages suffered by the patient that were a direct result of that harm (See Davies v. Go 21 Pa. D. & C. 4th 141 (1993).
Jurisdictional variance with respect to the acts necessary to give rise to medical malpractice is problematic when applying traditional call center standards to e-health transactions. While traditional medical call centers are usually located in the same jurisdiction as the patients they serve, hence making only one jurisdiction relevant, the patient and doctor engaging in an e-health transaction are regularly in different jurisdictions. Such a potential difference further makes the application of traditional medical call center cases and standards to e-health transactions for finding medical malpractice less valuable.
The applicability of more than one jurisdiction is also a significant consideration because the establishment of a physician-patient relationship varies by jurisdiction. The existence of this relationship mandates the duty to care due the patient and is essential for the determination of medical malpractice. In e-health medical service transactions, which involve multiple jurisdictions, is a question of which jurisdiction would be applicable. Such a question does not normally arise for traditional medical call centers, again suggesting the application of traditional medical call center cases and standards to e-health transactions for finding medical malpractice may be sub-optimal.
Just as medical malpractice standards are jurisdictionally specific, so too are defenses against medical malpractice liability. The initial and perhaps the most important determination will be whether or not a physician-patient relationship is formed during a cyber-consultation. It is generally accepted that a physician-patient relationship must be in effect in order give rise to a malpractice claim. See for example, Roberts v. Hunter, 426 S.E.2d 797 (S.C. 1993) which found that establishing the doctor-patient relationship as a prerequisite to a medical malpractice claim and Osborne v. Frazor, 425 S.W.2d 768 (Tenn. Ct. App. 1968) were the court held that the voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship, as well as Lopez v. Aziz, 852 S.W.2d 303 (Tex. Ct. App. 1993) were the court positing that the existence of a duty flowing from physician to patient is the essence of a malpractice claim but finding no physician-patient relationship.
Since the creation of a physician-patient relationship may be established by either an explicit contract or it may be implied in fact (See Lection v. Dyll, 2001 WL 688131 (Tex. App. June 20, 2001)), an Internet medical health provider who seeks to avoid medical malpractice liability may do so by an Internet contractual agreement with a patient that no physician-patient relationship is established.
The fact that the physician does not deal directly with the patient does not rule out a physician-patient relationship (See St. John v. Pope, 901 S.W.2d 420, 424 (Tex. App. 1995)). Consequently, an Internet medical service provider should not rely on the proposition that a physician-patient relationship cannot exist in the absence of the physician – patient meeting and should take action such as the execution of an explicit agreement to ameliorate or prevent a court from find such a relationship, and, in turn, finding medical malpractice.
In addition to contractual barriers to medical malpractice legal difficulties, business or procedural barriers may be contracted by e-medical service providers. It is likely that a physician who consults with another physician via the Internet will not be deemed to have established a physician-patient relationship with the patient. Thus, e-health systems which involve the patient’s traditional doctor will also ameliorate or prevent a court from find such a relationship, and, in turn, finding medical malpractice.
The nature of e-heath is such that it promotes consultations between two physicians and facilitates this consultation by allowing patient information such as medical charts and tests, and even live video of the patient to be transferred instantaneously to the consulting physician. Consultations between physicians via the telephone which is a form of e-health consultations, have been conducted for decades and have generally resulted in the finding that a physician-patient relationship was not created. In Lopez. v. Aziz, (852 S.W.2d 303 (1993)), an obstetrician was consulted once by telephone by the primary care physician responsible for a pregnant woman. The court ruled that a physician-patient relationship was not formed between Dr. Aziz and the plaintiff because Dr. Aziz did not "conduct any laboratory tests or review the result of any laboratory tests, did not prepare any reports, and did not bill the plaintiff or the primary care physician."
Thus, it may be concluded that an e-health transaction is not an equivalent of laboratory tests, does not result in the review of any laboratory tests, do not result in the preparation of any reports, and does not result in a bill to the patient of another physician, and cannot give rise to a successful medical malpractice claim. Regrettably, this bright line test assumes that a telephone consultation and a consultation performed via an e-health system are sufficiently similar.
However, major differences exist between a telephone and Internet consultation. During a telephone consultation, the consulted physician is made aware of only the facts that the consulting physician relays. During a telephone consultation, the consulted physician never sees the patient. During an Internet medical transaction, the consulted physician could have the patient's entire medical history, including test results, x-rays and scans. During a telemedicine consultation, the consulted physician may have the opportunity to interact with a patient.
Existing e-health systems can allow a consulted physician to become fully informed about a patient's status in order to provide a more educated medical opinion, thus giving rise to a physician-patient relationship. Traditional standards and regulation would find a physician-patient relationship if most of the following facts were present: the physician and the patient actually see each other, an examination takes place, the physician has access to the patient's medical record, and the consulted physician collects a fee for the consultation.
Courts have found physician-patient relationships in the most casual circumstances. In Wilson v. Teng, (786 So.2d 485 (2000)), a physician who had a previous relationship with a patient may have had a duty to the patient when they encountered each other in the emergency room to simply socialize. This case shows a court can find a physician-patient relationship due to any transaction. However, it is more likely this case stands for the proposition, once a physician-patient relationship is created; it carries through to other interactions. Consequently, it is unlikely that where the physician solicits patients by posting a website and is paid to be consulted, a physician-patient relationship will be recognized.
One of the potential uses of the Internet for e-health is as a medical call center. Just as a traditional form of the medical call center is the telephone number where patients can call and receive triage advice (i.e. seek more help or not), an e-medical call center allows patients to communicate via the Internet to receive triage advice.
A patient might take a photo of a skin ailment, the e-call center would allow the patient to receive triage advice (i.e. seek more help or not). This "Internet triage" creates the same type of liability concern, as the telephone medical call center. In particular, the liability risk is that the medical service provider will miss diagnose, which could result in a potential medical emergency being deemed a non-emergency. As suggested above, it is likely that an e-medical call center will be treated the same as telephone medical call centers in terms of liability. Since telephone medical call centers transaction have been litigation, it is useful to examine these cases.
The courts in Shannon v. McNulty (718 A. 2d 828 (1998)) and 47 F.Supp.2d 1013 (1999) each found that medical call center service provider had a duty to its patients to oversee the triage phone line and to ensure that the service providers acted in a medically reasonable manner. Failure to do so resulted in a breach of their duty and subjected itself to both vicarious and corporate liability.
As noted above, it is likely that an e-health consultation just as a phone medical consultation, may establish a physician-patient relationship. Once such a relationship is established, a duty is created between that physician and the patient. If this duty is breached, and damages occur, the physician may be liable for malpractice.
Potential malpractice claims exist in the marketing practices of e-health sites via indirect or vicarious liability. Liability is imposed on providers in several different ways, as a way to avoid it. First, liability may be imposed on an e-medical provider that use marketing techniques that hold themselves out to the public as offering and rendering quality healthcare services. Thus, to avoid this outcome, an e-medical provider may give notice to the contrary and have e-medical site users confirm this understanding.
Several cases have held healthcare providers responsible for malpractice committed by on-staff physicians at their hospital. These courts used the doctrine of agency by estoppel to hold healthcare organizations liable for their non-employee staff because the healthcare organizations advertised the quality of healthcare services, which the plaintiffs relied upon.
As e-health providers increasingly utilize the Internet to advertise the quality of services provided by their facilities, continue to promote their physicians by providing links to physician's personal websites, and continue to offer highly individualized medical services via the Internet the risk of vicarious liability increases dramatically.
However, medical malpractice liability for e-health service provider who produces information provided to consumers on such medical information web sites is not likely, nor should it be liable. This finding is based on the fact that Internet information services are analogous to print medium and thus granting a very high level of constitutional protection. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986) where the Court found that the characteristics of one new media (cable television) make it sufficiently analogous to another medium (print) to warrant application of an already existing standard or whether those characteristics require a new analysis.