Cyber-Malpractice: Legal Exposure for Cybermedicine

Abstract

This Article examines the content-related liability exposure of health care providers operating in cyberspace (cybermedicine). The Article maps real space theories of liability such as professional negligence, misrepresentation and products liability to cybermedicine fact patterns. This Article examines cybermedicine in contrast to the more widely discussed but narrower issue of telemedicine. The latter typically refers to technologies, primarily preconvergence telephony, satellite and video, used to patch geographical holes in health coverage. Thus, telemedicine is to medicine what distance learning is to education. Just as telemedicine technologies and goals have been more limited, so too have the legal issues been analyzed in a narrower regulatory or licensure issues. In contrast, cybermedicine is a broader concept. It encompasses not only the technology and legal issues of telemedicine, but also a far greater array of nontraditional and unique, technology-enabled interactions among health care providers and consumer-patients. Cybermedicine includes marketing, relationship creation, advice, prescribing and selling drugs and devices, and as with all things in cyberspace, levels of interactivity as yet unknown. Part II summarizes the themes likely to pervade the discourse during the emergence of cybermedicine and the mapping of liability models (cyber- malpractice) to World Wide Web (web) business models. To provide a firmer context, Part III briefly describes the presence of health care providers in cyber- space, and explains how some of their business models translate into cybermedicine. Then Part IV, V and VI identify three cybermedicine fact patterns that illustrate some or all of the themes identified earlier and that are likely to attract the initial forays into cyber-malpractice litigation. These fact patterns are: (1) web marketing by health care institutions; (2) web-based marketing and product support by pharma- ceutical manufacturers; and (3) the proliferation of health-oriented advice sites. Part VII concludes with some brief observations about early attempts at managing cyber- malpractice exposure.