Medical Malpractice Law: Med-Mal Over The Internet
Laws governing medical malpractice address 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 and 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 U.S. Supreme Court, is an international network of interconnected computers. 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 email 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 apply to e-health transactions the standards and regulations that are designed to address traditional medical malpractice, and that are currently applied to call centers.
However, the analogy is somewhat faulty. The chief difference is the technology upon which each transaction is based. A medical call-center nurse interacts with a patient via telephone to evaluate symptoms. An e-health medical service provider interacts with a patient via 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 at a photo of a wound. Arguably, such differences enable a traditional call-center medical provider to 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.
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 renders less valuable the application of traditional medical call-center cases and standards to e-health transactions.
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 of care due the patient, and is essential for the determination of medical malpractice. In e-health medical service transactions that involve multiple jurisdictions, there is a question of which jurisdiction would be applicable.