As the costs of both delivering and receiving health care services continue to increase, doctors are looking for new ways to deliver quality health advice in an efficient manner. One way they are doing so is through virtual patient consultations. For instance, MeMD offers 24/7 services in most states to any customer with fifty dollars and a web cam. Although these services are currently limited to primary care services, such as treating the flu, sinus infections, and ankle sprains, it is not difficult to imagine the scope of these services increasing. In fact, Google is currently testing a “Talk With a Doctor Feature” that would connect individuals who are researching their symptoms with an appropriately licensed physician. At any rate, as virtual health care delivery becomes more popular, the law will need to respond.

For one, patients disclose confidential information to their doctors, and doctors are prohibited from divulging that information under the Health Insurance Portability and Accountability Act (HIPAA). However, if patients are communicating that confidential information over a virtual medium, that information is extremely susceptible to being compromised. Indeed, the recent data breaches at Target and Home Depot only confirm that possibility. Thus, privacy law, namely regulations on physicians performing these online consultations, will need to adapt in the face of this possibility.

Second, tort liability for health care providers could change. Although health care providers would presumably still be held to a high level of care, the online patient is arguably assuming a certain degree of risk to save both time and money, since in-person visits are presumably more comprehensive because they allow a health care provider to conduct a physical examination. Thus, if a health care provider misdiagnoses a patient but would not have misdiagnosed if examining the patient in-person, is the health care provider liable? If a provider was indeed found liable in that scenario, it would almost certainly increase the cost of providing online care. And given that part of the advantage of online care is low cost, that outcome is probably not desirable.

Lastly, delivering health care services online would allow American physicians to consult with patients all around the world. If online health services extends to surgery by using robots to perform the manual tasks, a physician in Nashville, Tennessee could perform arthroscopic surgery in China. However, each country has individual licensing regulations and navigating that web of regulations could be particularly difficult for physicians. In addition, there would be numerous implications for liability insurance carriers. For instance, could the robot manufacturer be held liable in a malpractice suit? Or should the doctor who is controlling the robot shoulder the liability? At any rate, the proliferation of online health care services will force privacy and medical malpractice law to adapt with the times.


Mark Foley

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