Cyber-malpractice: legal exposure for cybermedicine.

INTRODUCTION This Article examines the content-related liability exposure of health care providers operating in cyberspace (cybermedicine).^^The Article maps real space theories1 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.2 The latter typically refers to technologies, primarily preconvergence telephony, satellite and video, used to patch geographical holes in health coverage.3 Thus, telemedicine is to medicine what distance learning is to education.4 Just as telemedicine technologies and goals have been more limited, so too have the legal issues been analyzed in a narrower regulatory5 or licensure6 issues.7 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.8 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.9 Part II summarizes the themes likely to pervade the discourse during the emergence of cybermedicine and the mapping of liability models (cybermalpractice) to World Wide Web (web) business models. To provide a firmer context, Part III briefly describes the presence of health care providers in cyberspace, 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 pharmaceutical manufacturers; and (3) the proliferation of health-oriented advice sites. Part VII concludes with some brief observations about early attempts at managing cybermalpractice exposure. II. CYBERMEDICINE AND CYBER-MALPRACTICE: IDENTIFYING THE THEMES The use of a telephone by a physician to communicate a misdiagnosis to a patient does not automatically implicate telecommunications law. Equally, not every web or electronic mail (e-mail)10 contact injects cyberlaw concerns or issues into health care provider liability cases. Thus, not every cyberspace intrusion into traditional malpractice law will prompt radical reengineering of doctrinal stalwarts. However, certain themes will greet the early litigious stages of developing cybermedicine; themes that are rooted in web business models and emerging provider liability doctrine. A. THE EXPANSION OF PROVIDER LIABILITY This Article uses health care provider liability as a broad container for liability constructs that go beyond the paradigmatic malpractice case.11 Horizontally, the potential pool of defendants is expanded to include managed care organizations (MCOs) and, somewhat more controversially, pharmaceutical manufacturers. Vertically, a far broader array of fact patterns is entertained, contemplating a growing number of "information torts,"12 duties owed to nonpatients, product supply cases and access to care issues. A somewhat cliched cyberspace observation nevertheless provides an appropriate starting point.13 Cybermedicine and hence cyber-malpractice will spill over traditional state or national borders. Thus, relatively provincial health care provider liability doctrinal structures will confront overlapping regulatory and liability systems,14 intermingled with very difficult jurisdictional and extraterritoriality issues.15 Even if one concentrates on domestic intrastate provider activities, the implications of cyberspace are far-reaching. In real space, we can usually distinguish between a pharmacy and a pharmaceutical manufacturer, between a physician group and an MCO, but such distinctions are not always so obvious when viewing a health care provider web page. …