Medical Malpractice Law: Med-Mal Over The Internet
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., whether to seek more help or not), an e-medical call center allows patients to communicate via the Internet to receive triage advice.
For example, a patient might take a photo of a skin ailment, send it to an online center, and the e-call center would allow the patient to receive triage advice. 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 misdiagnose, which could result in a potential medical emergency being deemed a nonemergency. 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- center transactions have been the subject of litigation, it is useful to examine these cases.
The courts in Shannon v. McNulty, 718 A. 2d 828 (1998), and Crum v. Health Alliance-Midwest, 47 F.Supp.2d 1013 (1999), each found that a 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 duty and subjected the providers to both vicarious and corporate liability.
Potential malpractice claims exist in the marketing practices of e-health sites, via indirect or vicarious liability. Liability may be imposed on e-medical providers using marketing techniques that hold themselves out to the public as offering and rendering quality health-care services. To avoid this outcome, an e-medical provider may give notice to the contrary and have the site users confirm this understanding.
Several cases have held health-care providers responsible for malpractice committed by on-staff physicians at their hospital. These courts used the doctrine of agency by estoppel to hold health-care organizations liable for their nonemployee staff, because the health-care organizations advertised the quality of their health-care 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 physicians' 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 an e-health service provider, who produces information provided to consumers on such medical information websites is not likely to be, nor should it be, held liable. This finding is based on the fact that Internet information services are analogous to print media, thus benefitting from a very high level of constitutional protection. •