Special Lecture Carol M. Stock, JD, MN, RN Carol M. Stock & Associates Seattle, Washington, USA carolstock@seanet.com

LEGAL ISSUES IN INTERNET MEDICINE

Introduction
The use of the Internet in medicine provides an exciting new medium for delivery of health care. Unfortunately, Internet use in medicine also poses new legal issues. First of all, providing medical advice across state or national borders is generally illegal, unless the provider is licensed in both regions. Second, there is potential for increased liability exposure for providers and organizations supporting interactive websites. Interactive tools such as web bots, health assessment questionnaires, medical advice and information applications, chat rooms and bulletin boards, and email usage all create new legal challenges.

Types of medical and health websites and "cyberliability" (product liability vs. medical liability)
Health websites can be broken down generally into three categories: medical information websites, private practice websites, and hybrid medical websites. Information websites generally provide information on particular health topics, which may include interactive tools, e.g. a personal health assessment. Private practice web sites are utilized for existing provider practice populations and offer appointment scheduling, practice and health topic information, and secure private interactions between the provider/staff and patients. Hybrid medical websites include both health information plus direct provider/consumer interaction, and the consumer and provider may never have face-to-face contact.

Medical advice vs. health information
To determine licensure requirements and liability risk one must establish whether the site provides health information or medical advice. Generally, Internet medical articles and even intelligent interactive health assessments are considered health information only and not the practice of medicine. But if specific information or advice is provided on a one-to-one basis to an individual user, courts hold this to fall under the category of the practice of medicine. Therefore, how information and disclaimers of use are written is paramount. U.S. courts currently hold in favor of disclaimers that state that the health information should be construed as information only and that the user should contact a physician if specific advice is requested. The courts rationale is that a user is given sufficient notice if the disclaimer is well displayed.

Web Bots - Is this the practice of medicine?
Wet bots are software robots that can be implemented on a web server. Web bots pose interesting new legal questions. Web bots may include intelligent health-risk assessments (e.g. Dr. Global, WebMD), artificial intelligence decision support systems, and actual disease self-management applications. Use of databases e.g. National Institutes of Health, National Library of Medicine, etc, may be utilized to provide responses to various questions. Such programmed responses may give actual diagnoses and recommendations. Is this the practice of medicine? To date, no legal cases have come before U.S. courts. Nevertheless, as web bots become more intelligent and interactive, they will undoubtedly be challenged in court as constituting the practice of medicine. How web bots are programmed and by whom, what databases are utilized, and the utilization of appropriate disclaimers will be important in determining case outcomes.

Use of disclaimers
Well-written, well-displayed disclaimers are the "lifeboat" of a medical website. Applications can be designed so that they "force" the user to read the disclaimer prior to using the application. This provides virtual "documentation" that the user has read and agrees to the terms of the application or its use. Again, U.S. courts find this a compelling argument.

Handling of emails
How emails are viewed from a legal perspective in part depends on the type of website and the type of email interaction. Is this a general medical information website or a private medical practice website, and does a prior relationship exist between the sender and the receiver? Is the email a technical issue or health related issue? Once a physician responds to a specific health question, a physician/patient relationship may exist. This relationship would create licensure requirements and greater liability exposure. How one fashions a response is critical. If health information is provided one needs to state via a disclaimer or write in the body of the email that the user should also contact his/her own physician.
Several organizations including AMIA (American Medical Informatics Association) and the American Medical Association have created guidelines for use of email in a medical practice. Generally, non-urgent general health related information, and reminders and scheduling are appropriate uses. However, urgent or potentially urgent health related concerns would not be. Additionally, those in the U.S. must now consider the effects of HIPAA (Health Insurance Portability & Accountability Act) regarding encryption and security of email requirements.

Privacy policies/ Use of Cookies
Privacy policies reassure users that the use of any information provided to a web site is handled in a confidential manner. Quality websites prominently display their privacy policies and agencies that review websites scrutinize such policies carefully.
The use of "cookies" on a website does not violate a user’s privacy if the user is notified of such use in the privacy policy. U.S. courts have held that sites that violate a user’s privacy or violate their own site’s privacy policy will be severely dealt with. HIPAA will also require that privacy policies be in place on medical websites in the U.S., as well as encryption technology for certain user interactions.
 
Bulletin boards and chat rooms

Conclusion
The Internet is still in its pioneer phase, but it offers great promise and potential for medicine. Health care delivery, provider/patient interchange and consumer involvement in their own health care will all benefit from the Internet. If careful health planning is followed, and legal risk reduction is planned for, the Internet has the possibility of being one of healthcare’s greatest tools.
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Disclaimer