Medical Malpractice Law: Med-Mal Over The Internet
Just as medical malpractice standards are jurisdictionally specific, so too are defenses against medical malpractice liability. The initial, and perhaps 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. Since the creation of a physician-patient relationship may either be established by an explicit contract or may be implied in fact, an Internet medical health provider who seeks to avoid medical malpractice liability may do so by an Internet contractual agreement with a patient, which states 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, if an e-health system involves the patient's traditional doctor, it is less likely that a court will find a physician-patient relationship, and in turn, find 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 telephone, which is a form of e-health consultation, 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. Salar Akhtar Aziz and the plaintiff because 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, does not result in the preparation of any reports, 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.
Phone V. Internet
However, major differences exist between telephone and Internet consultations. During a telephone consultation, the consulted physician is made aware only of the facts that the consulting physician relays, and 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, and the consulted physician may have the opportunity to interact with the 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 and simply socialized. 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 that once a physician-patient relationship is created, it carries through to other interactions. But it is unlikely that a new physician-patient relationship will arise from an Internet posting, even if a consultation fee is paid.