Doctors on the Internet - Legal and Practical Implications

- Rajesh Sivaswamy, (B.A, LL.B)

# 48, I.T.I. Layout, New B.E.L.Road, Bangalore, Karnataka, India, 560054

- Jidesh Kumar. M.D. (B.A, LL.B)

#3416, 6th Cross, 2nd Stage, Rajajinagar, Bangalore, Karnataka, India, 560021

E-mail: jideshkumar@justice.com
Eubios Journal of Asian and International Bioethics 12 (2002), 185-8.
1. Introduction

" Watson, come here I want you" said Alexander Graham Bell on March 20, 1876, when he inadvertently spilt battery acid on himself, while making the world's first telephone call. Little did Bell realize that this was indeed the world's first telemedical consultation. We have come a long way since then. The increase in the cost of medicine, the long wait for a doctor's appointment, and the treatment of patients by medical practitioners has led many consumers to find their physician a mouse-click away (1). Like many traditional brick and mortar businesses, medical care is finally coming to the Internet. Health-care websites have been in existence for years, however, the presence of websites that offer services comparable to traditional doctor consultations are something new. As the Internet expands into all parts of our life, it is logical that the health-care industry would follow. The challenge for the legal community is fitting the practice of medicine over the Internet into the current legal construct or adjusting the legal system to accommodate the practice (2).

The use of technology is not very new as one might think. Telemedicine, the predecessor of the use of technology has been practiced since the invention of the telephone, which gave doctors and patients the initial ability to give and receive medical advice over long distances (3). However, modern telemedicine was first implemented in the 1950s (4). At that time, the National Institute of Mental Health established a closed-circuit television system between state hospitals in Nebraska, Iowa, North Dakota and South Dakota (5). The system was primarily used for weekly teleconferencing lectures for physicians, but later it was also used in psychiatric consultations". By 1970, Veteran's Affairs Hospitals in Nebraska integrated the technology for educational use and patient care. Meanwhile, Canadian physicians developed "Teleradiology", which allowed doctors to transmit radiographs via television for educational and consultative purposes.

Broadly defined, telemedicine is the transfer of electronic medical data (i.e. high-resolution images, sounds, live video, and patient records) from one location to another. This transfer of medical data may utilise a variety of telecommunications technologies, including, but not limited to ordinary telephone lines, ISDN, fractional to full T-1's, ATM, the Internet, Intranets, and satellites (6).

Telemedicine has expanded considerably in recent years. Between 1990 and 2001, sustained telemedicine projects increased from five to more than hundred. Today, telemedicine's applications vary and some organizations have used the technology to provide ultrasound images at lower costs to specialists (7). Such image transfers have allowed patients access to state-of-the-art ultrasound and to practitioners who can interpret such images in real time. Teleradiology also continues to develop in the telemedicine field. For example, some hospitals have the means to transfer high-resolution images via a broadband network. This transfer allows for information sharing in multiple locations and allows physicians to view such images with enough precision to make a valid diagnosis.

Telemedicine has given birth to the troublesome child of cybermedicine. The two are inextricably linked by their similar methods of health care delivery over long distances by the use of telephone lines and other similar means. Cybermedicine, however, focuses primarily on the practice of medicine over the Internet (8).

In recent years, many types of health care providers have established a presence on the Internet. WebMD.com is one of the latest participants in the practice of telemedicine. Telemedicine and Cybermedicine serves as a place where both doctors and patients can easily obtain medical information. Another source is Cyberdocs.com, a Massachusetts-based website created in 1996 by Dr. Terry Archer and Dr. Steven Kohler. The website describes itself as "An online Web-based professional service composed of physicians who have come together with the mission of providing REAL-TIME, ONLINE, CONFIDENTIAL medical advice to patients on the Internet. Further, the website warns that patients must seek "appropriate MEDICAL FOLLOW-UP" face-to-face with a physician. The site allows patients to e-mail physicians about their medical problems. First, however, they must provide their medical history via the Internet, describe their illness and reason for consulting a doctor, and provide a credit card number. The patient is charged about $50.00 per visit with the cyberdoctor. Patients then log on to the site and discuss the problem online with a physician, who provides treatment advice and, in some cases, calls in medication to the patient's local pharmacy.

The Cyberdocs.com website provides an interesting example of the potential problems that could arise in the practice of telemedicine. As noted above, the site provides medical advice and care to its users. These users access the site and pick one of two options: either an "immediate medical consultation" or simply an "appointment." After registering, the user is eventually directed to an online "doctor's office" where he or she may chat over the Internet with a Cyberdocs physician. Before entering the chat room, the Cyberdocs physician reviews the user's medical information already provided. An unstructured dialogue then ensues between doctor and user, where the doctor may ask additional questions and, if warranted, prescribe medication. The prescriptions may be called in to the patient's local pharmacy or delivered directly via a commercial delivery service.

Cyberdocs also provides a disclaimer, requiring that all its patients get an in-person follow-up visit to their Internet consultation. The site states that "there are clearly limitations to telemedical consultations, the principal one being (currently) inability to perform a physical examination, for that reason, Cyberdocs emphasizes that its services are not a substitute for conventional medical care.

Such an arrangement as the one just described is not dissimilar to what happens in a typical telemedical consultation. However, greater potential arguably exists with audiovisual technology for face-to-face interaction between doctors or between doctor and patient. The increasing use of telemedicine in general and cybermedicine in particular, has caused the medical community to attempt to address certain issues that may impact the use of these technologies. Although most of these concerns are not new to the medical community, the way they are addressed in the context of telemedicine may require adapting existing laws and procedures. Three major topics discussed in this area include malpractice, confidentiality, and informed consent.

Telemedicine and its associated technologies on the internet promises to save lives, improve the quality of medical services, increase access to treatment and even control the skyrocketing costs of health care delivery. If the goals are quality, access and curtailing costs, telemedicine is one part of a complex answer.

And yet, with health care costs escalating, society struggles to realize telemedicine's promise. Quite simply, telemedicine symbolizes and catalyzes the clash between the reality of our legal and political approach to health care and the Indian dream of bringing health care to all patients. Unlike other issues, telemedicine cuts through and challenges the traditional controls of access and cost. As such, telemedicine is a microcosm of our health care delivery system and a lens through which one may analyze the obstacles to access in the current system.

But cyber medicine has barriers preventing universal acceptance. Three regulatory questions dominate this area: 1) licensure, credentialing, and liability (9); 2) access concerns, including standards for use, confidentiality, privacy; and, 3) economic issues, reimbursement for services, funding and cost effectiveness.

2. Doctor-Patient Relationship

In case of disputes arising out of such relationship resort must be had to the case laws governing such relationship as to whether a doctor-patient relationship ever existed in the first place. Case laws are few and far between on this aspect and does not throw sufficient light on this subject. In Bienz v. Central Suffolk Hospital(10), the court observed that if a doctor offers advice, treatment, or diagnoses over the telephone, a doctor-patient relationship is established. Further, courts have developed a set of five questions to determine if a doctor-patient relationship exists: (1) Have the doctor and patient actually met? (2) Did the doctor examine the patient? (3) Did the doctor review the patient's records? (4) Did the doctor know the patient's name? and (5) Did the patient pay the doctor for services? (11). Only some of these questions must be answered in the affirmative in order to establish a doctor-patient relationship.

In Lopez v. Aziz, a doctor-patient relationship was not found when a consulting obstetrician talked to the patient's regular physician by phone (12). The court noted that since Aziz did not contact or examine Mrs. Lopez directly, and only spoke with her doctor, no relationship existed. By contrast, a relationship was found in Wheeler v. Yettie Kersting Memorial Hospital (13). Here, an on-call physician used information obtained by phone regarding the status of a woman in labor to send the woman to a hospital. Because the doctor evaluated the patient's condition and recommended treatment over the telephone, the court found that a doctor-patient relationship existed (14).

The lesson of Wheeler is that even though a patient may not be in the same room with a doctor, a relationship may still be formed by the use of telemedicine to diagnose or treat a patient. A related problem is in determining where malpractice liability lies in a telemedicine scenario (15). As it has been noted, doctor-patient relationships may spring from telemedical consultations. Problems arise, however, in determining joint and several liability for all the physicians involved in a telemedical consultation. At a minimum, two physicians may be involved: the referring physician, usually at the same location as the patient, and the physician consulting via telemedicine. This arrangement is different from traditional referrals, where a doctor refers the patient to a specialist, who then takes over that portion of the treatment. In this traditional scenario, the responsibility for diagnosis and continued treatment is that of the specialist. In telemedicine, however, the referring doctor (since technically the patient is still under his or her care), does not have to follow the advice provided by the telemedical consultation.

Case laws, however, seems to suggest that a doctor's participation in telemedical consultations, whether or not his or her advice is followed, establishes a doctor-patient relationship. For example, in Greenberg v. Perkins (16) the court held that even if a traditional doctor-patient relationship is not present, a physician who examines a non-patient still has a duty to not cause harm to the person being examined. Also, in Dougherty v. Gifford (17), a doctor-patient relationship was found between a pathologist and a patient, even though the pathologist never reviewed the patient's records nor met the patient. Because of the services rendered to the patient, the court found that a relationship existed. Thus, based on case laws, it appears that even minimal contacts between doctors and patients via telemedicine may establish a sufficient relationship for malpractice liability (18).

3. Jurisdiction

Another issue related to telemedical malpractice involves the applicable jurisdiction in which a lawsuit should be filed. In a situation where there exists transboundary consultations the question of jurisdiction becomes important. Thus, to determine jurisdiction, courts must first determine where the practice of medicine was committed.

Exercising personal jurisdiction is contingent on two requirements. First, a nonresident defendant must have "purposefully availed himself of the benefits and protections of the forum state by establishing "minimum contacts' with that state (19). Second, exercising such jurisdiction must not "offend traditional notions of fair play and substantial justice (20).

The minimum contacts portion of this test may exist if the contacts are "continuous and systematic (21) or are "purposefully directed" toward the forum state. Further, courts have held that a nonresident defendant marketing services in the forum state may reasonably anticipate being brought into court in that same state. These determinations are made based on the facts of each case.

However, in the telemedical context, some commentators have noted that a minimum contacts analysis could be similar to those made in determining whether a doctor-patient relationship exists (22). The "practice of medicine" includes at a minimum "any attempt to diagnose or treat a person for any illness. Under this definition, telemedical treatment might be considered to take place at the patient's location. Case law affirms this stand. For example, in Wright v. Yackley (23), a malpractice action involving an Idaho patient and a South Dakota doctor resulted in a ruling that proper jurisdiction lay in South Dakota because all diagnoses and prescriptions were made in that state. The patient, a former South Dakota resident, could not claim Idaho jurisdiction because the malpractice action arose from the confirmation of an old prescription. However, the court noted, had the treatment been a new one rather than the continuance of a prior visit, the jurisdiction of the patient's state might also be controlling. The court ultimately ruled that the focus must be on the place where services are rendered. Based on such rulings, a doctor practicing telemedicine may need to be aware of laws and regulations in other states that may have jurisdiction over his activities, particularly in the area of physician licensing.

4. Conclusion

Cybermedicine's growth has led the American Medical Association ("AMA") to scramble in order to keep up with the changes affecting the healthcare industry. Many members of the AMA strongly oppose the growth of cybermedicine due to its potential negative effects on patient care. The AMA also worries about losing control over the competing cost of medical care (24).

One of the biggest concerns about cybermedicine is quality. Many doctors have expressed concern over the quality of care that is given over the Internet. There is a great potential for fraud, abuse, neglect and inconsistency. A patient has no way of knowing whether the diagnosis that he or she receives is from a licensed physician or whether it is from someone simply holding himself out as a licensed physician.

Cybermedicine has incredible advantages. With 80% of India's population living in rural areas and 80% of the medical community living in cities, there is an imbalance in health care reaching people. So much that in the new millennium, 11% of the world's population (residing in our rural areas) remain devoid of quality health care.

Telemedicine can thus avoid unnecessary travel and expense for the patient and the family, improve outcomes and even save lives. Once the "virtual presence" of the specialist is acknowledged, a patient can access resources in a tertiary referral centre without the constraints of distance. Telemedicine allows patients to stay at home ensuring much needed family support. In a large Telemedicine project in the USA 83% of patients who would have been transferred to an urban hospital remained in their community reducing the cost by at least 40 to 50%. This also ensures maximal utilisation of suburban hospitals. The general practitioner in the rural/suburban area often feels that he would lose his patient to the city consultant. With Telemedicine, the community doctor continues to primarily treat the patient under a specialist's umbrella. With modern software/ hardware at either end 90% of the normal interaction can be accomplished through Telemedicine.

In many remote areas of the country, which lack the basic health care facilities; patients have to travel for miles before they can be treated at any hospital/health care Centre and many do not survive this journey. Hence, it becomes very essential that the Telemedicine concept be introduced and implemented in the country. It is definitely possible and feasible to start this in India with the existing telecommunication infrastructure.

Cybermedicine can also be much more cost effective than the typical doctor's visit by offering patients the opportunity to buy medicine at a reduced price. It is more convenient and effective, especially for patients who have done their research or who have previously visited a doctor and are positively aware of their symptoms. Cybermedicine also offers anonymity to patients who may be too shy or embarrassed to see a doctor about their specific problem. Additionally, Cybermedicine provides an alternative to people who do not have the time, or simply will not take the time to visit a doctor and to patients who may not be able to buy certain drugs in their state or country.

The National Informatics Centre of India has started a telemedicine project that aims at providing health-related information resources, decision support tools and data at the time and place of need by health care providers across the country. To start with, NIC would allow consultation facilities over NICNET (NIC's satellite based communication network) where doctors in remote areas can consult the specialists in neigbouring cities. This is already underway at a remote region in Andhra Pradesh where doctors in Nellore can consult specialists at Sri Venkateswara Inst. of Medical Sciences in Tirupati. This would be expanded to transmission of X-ray, MRI, and CT-SCAN reports over NICNET.

Today some of the leading hospitals in India such as the Apollo Hospitals, Madras Medical Mission Hospital, Mallya Hospital and Wockhardt Hospital & Heart Institute are offering such facilities.

Cybermedicine is very exciting and will probably drastically change the medical industry. However, a lot depends on how much cybermedicine is regulated (25) and how much liability a cyberdoctor incurs. If cybermedicine is allowed to grow without regulation, it will most likely become one of the largest health catering service (26).

References

1 Press release, Healtheon and WebMD Announce Merger to Form First End-to-End Internet Healthcare and E-Commerce Company (visited April 17, 2000).

2 See Ranney V. Wiesemann, On-Line or On-Call? Legal and Ethical Challenges Emerging in Cybermedicine, 43 ST. LOUIS L.J. 1119, 1119 (1999).

3 Judith F. Darr and Spencer Koerner, Telemedicine: Legal and Practical Implications, 19 Whittier L. Rev. 3 (1997).

4 Douglas D. Bradham, Sheron Morgan, Margaret Dailey, The Information Superhighway and Telemedicine: Applications, Status and Issues, 30 Wake Forest L. Rev. 145 (1995).

5 Danielle Suctcov, Say Aaaaaah! "Virtual" Doctors-Real Medicine, 7-Spg Experience 10 (1997).

6 http://www.indmed.nic.in/vsindmed/imcwebtm.html

7 What is Telemedicine? <http://www.atmeda.org>, cited in Renny V. Weisemann, On-Line or On-Call? Legal and Ethical Challenges Emerging in Cyberspace, 43 St. Louis U. L.J. 1119 (1999).

8 Douglas D. Bradham, Sheron Morgan, Margaret Dailey, The Information Superhighway and Telemedicine: Applications, Status and Issues, 30 Wake Forest L. Rev. 145 (1995).

9 For example, federal statutes that address telemedicine include: 7 U.S.C. 950aaa (1997) (telemedicine and distance learning services in rural areas; appropriating 100,000,000 for each of the fiscal years 1996 through 2002); 42 U.S.C. 254 (telemedicine rural health outreach, network development and telemedicine grant program; $36,000,000 for fiscal year 1997, and such sums as may be necessary for each of the fiscal years 1998 through 2001); 42 U.S.C. 2487 (telemedicine and biomedical research in space, authorizing the establishment of emergency medical service telemedicine capability; 42 U.S.C. 4206 (authorizing Medicare reimbursement for telehealth services); 17 C.F.R. 1703 (encouraging through loan and grants telemedicine services and distance learning services in rural areas through telecommunications); Pub. L. 104-299, Sec. 3 Rural Health Outreach Telemedicine Grant Program.

10 557 N.Y.S.2d 139 (App. Div. 1990)

11 See e.g., Clarke v. Hoek, 219 Cal. Rptr. 845 (Ct. App. 1985), Roberts v. Hunter, 426 S.E.2d 797 (S.C. 1993), St. John v. Pope, 901 S.W. 2d 420 (Tex. 1995).

12 852 S.W.2d 303 (Tex. App. 1993).

13 866 S.W. 2d 32 (Tex. App. 1993).

14 Ibid

15 See generally, James L Rigelhaupt,' What constitutes Physician-Client Relationship for Malpractice purposes'

16 845 P.2d 530 (Colo. 1993).

17 826 S.W.2d 668 (Tex. App. 1993).

18 Ruth Ellen Smalley, Comment, Will A Lawsuit A Day Keep the Cyberdocs Away? Modern Theories of Medical Malpractice as Applied to Cybermedicine, 7 RICH. J.L. & TECH. 29 (Winter 2001), at

19 International Shoe Co. v. Washington, 326 U.S. 310 (1945).

20 Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987).

21 Helicopteros Nacionales de Columbia, SA v. Hall, 466 U.S. 408 (1984).

22 World-Wide Volkswagon Corp. V. Woodson, 444 U.S. 286 (1980).

23 459 F.2d 287 (9th Cir. 1972).

24 http://www.ama-assn.org.

25 Ross D. Silverman, Regulating Medical Practice in the Cyber Age: Issues and Challenges for State Medical Boards, 26 AM. J. L. & MED. 255, 266 (2000)

26 Press release, Healtheon and WebMD Announce Merger to Form First End-to-End Internet Healthcare and E-Commerce Company (visited April 17, 2000)
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