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Before the Internet, physicians practiced medicine primarily, if not exclusively, in a single state. Today, Web sites extend the ability to practice medicine nationwide. The numbers are staggering: More than 15,000 sites now provide health information and services, and 24.9 million people in the past year accessed health and medical information online. Traditionally, health care has been a local industry regulated mainly by the states. And states are not necessarily receptive to having out-of-state physicians, or even in-state physicians, advise or treat their citizens over the Internet. Pennsylvania Deputy State Attorney General Marcia Telek De Paula was quite blunt about this according to the May 2 Harrisburg Patriot. In announcing prosecution of several e-health sites, she said, “What we’re trying to do is keep those out-of-state physicians and pharmacists from coming into the state of Pennsylvania, where they’re not welcome.” Thus, the exponential growth in e-health activity raises interesting legal questions for Web sites and medical professionals. Future litigation is inevitable, whether in the form of tried-and-true medical malpractice claims based on advice given online or more novel claims, such as breach of confidentiality or invasion of privacy, based on data collection by e-health sites. In the borderless world of the Internet, two pieces of the liability puzzle involve key threshold issues — the existence of personal jurisdiction and a physician-patient relationship. FAVORABLE FORUMS If the courts decide that Internet sites and associated medical professionals are subject to personal jurisdiction in any state in which the site is available, their potential liability increases sharply. Since state laws vary dramatically in their receptivity to personal injury claims, plaintiffs will shop for the most favorable forum. More plaintiffs are going to have the financial resources to sue if they can proceed locally. And, importantly, state laws can be inconsistent, or even contradictory, in their requirements, making it difficult for Web sites to comply. Personal jurisdiction over a nonresident company or doctor could be based on the existence of a Web site in essentially two ways: First, a court might find that the maintenance of the site itself constitutes “systematic and continuous activities” in the forum state sufficient to sustain general jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984). Second, a court might find that the site created “minimum contacts” sufficient under International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its progeny to sustain specific jurisdiction. (Note that jurisdiction requirements vary depending on a state’s long-arm statute.) To date, the developing Internet jurisdiction case law (most of which does not involve e-health) has tended to reject attempts to rely on Web sites to confer jurisdiction. For example, in Barrett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999), a Pennsylvania psychiatrist who is also a national expert on health fraud and quackery claimed that the defendant had defamed him by accusing him of being a “phony” consumer advocate in messages posted on her Web site and on listservers. The court rejected Stephen Barrett’s assertion of general jurisdiction, holding that Web sites are akin to national publications and, without more, do not constitute “systematic and continuous contacts.” The court rejected Barrett’s assertion of specific jurisdiction, reasoning that the defendant’s postings addressed a national issue and attacked him in his national capacity, not as a Pennsylvania psychiatrist. The court also cited the noncommercial nature of the postings to distinguish the defendant from “commercial entrepreneurs in other Internet cases who have actively availed themselves of the privilege of conducting business in the forum state.” Barrettdoes not stand alone. Other courts have declined to exercise jurisdiction when a site merely provides information to those who seek it out. See, e.g., Bradley v. Mayo Found., 1999 U.S. Dist. Lexis 17505 (E.D. Ky. Aug. 10, 1999) (that Mayo Clinic maintains two sites does not subject doctor to personal jurisdiction in Kentucky for treatment in Minnesota); Cybersell Inc. v. Cybersell Inc., 130 F.3d 414 (9th Cir. 1997) (Web ad alone does not confer jurisdiction over advertiser); Transcraft Corp. v. Doonan Trailer Corp., 1997 WL 733905 (N.D. Ill. Nov. 17, 1997) (Web ad with e-mail address for inquiries is not sufficient). Others have held that commercial sites selling products are not, standing alone, grounds to exercise jurisdiction. See, e.g., ESAB Group Inc. v. Centricut, LLC, 34 F. Supp. 2d 323 (D.S.C. 1999) (site to sell products does not meet minimum contacts test); Molynycke Health Care AB v. Dumex Med. Surgical Prods. Ltd., 64 F. Supp. 2d 448 (E.D. Pa. 1999) (site does not confer general jurisdiction even if sales made into state). A small minority of courts has been willing to assert jurisdiction over out-of-state defendants based on Internet activity. In a libel action, Bochan v. La Fontaine, 68 F. Supp. 2d 692 (E.D. Va. 1999), a Virginia federal court found specific jurisdiction over some out-of-state defendants because they had posted a message via America Online, which is based in Virginia. The court found jurisdiction over another defendant because he operated a California Web site that advertised his computer hardware company. This site was deemed to be “soliciting business” in Virginia despite the fact that no sales had been made in Virginia. Indeed, sales could not be made through the site, but the court nonetheless distinguished it from a “passive” site that does not confer jurisdiction. Similarly, in Inset Systems Inc. v. Instruction Set Inc., 937 F. Supp. 161 (D. Conn. 1996), the court asserted jurisdiction because the defendant had solicited business in Connecticut via its Internet ad, which included a toll-free number. The court discussed a series of cases involving printed ads and concluded that Internet advertising is “of a sufficiently repetitive nature” to satisfy Connecticut’s long-arm statute. The advertising also survived minimum-contacts scrutiny: The defendant “could reasonably anticipate being haled” into Connecticut courts since it had “directed” advertising toward the state by using the Internet. See also Telco Communications v. An Apple a Day, 977 F. Supp. 404 (E.D. Va. 1997) (advertising and solicitation via Web site triggers jurisdiction); Maritz Inc. v. Cybergold Inc., 947 F. Supp. 1328 (E.D. Mo. 1996). Although e-health sites may take some comfort in knowing that the majority of courts that have considered the issue have not asserted personal jurisdiction based simply on the existence of Web sites, this developing consensus will not protect defendants in all instances. Much depends on the particular facts of the case. Generally speaking, the more passive the site, the less likely the assertion of personal jurisdiction. However, if a company operates an interactive site with information directed toward nonresidents, a court may be less willing to dismiss the case. A site stating that its doctors are licensed and able to provide advice in 15 states, for example, is far more likely to be subjected to personal jurisdiction outside its home state. ARE YOU MY DOCTOR? Many e-health sites, even those with doctors licensed in many states, attempt to avoid being subject to oversight by multiple jurisdictions and medical boards by disclaiming any intent to provide medical advice or create physician-patient relationships. Some sites claim to be providing content for “entertainment” or “informational” purposes only. Others recommend that users consult with their own doctor to assess the validity of any information provided by the site. Are such disclaimers effective? Or will the courts find a physician-patient relationship regardless? To date, there have been a few suits filed in the e-health arena, but there have not been any published judicial decisions regarding when Internet contacts create a physician-patient relationship. More suits likely will be filed in light of the level of e-health activity and the absence of any personal relationship between Internet users and online physicians. Also, the legal uniqueness of many Internet interactions — such as physicians answering medical questions in a chat room — may lead to litigation. In the meantime, several voluntary groups have promulgated codes to provide some guidance. The codes tackle the professional relationship question in different ways. The code promulgated by Hi-Ethics states that current codes of ethics “do not apply to every interaction between a consumer and a professional,” although they do apply “when health care professionals use health web sites to provide professional care.” The Hi-Ethics code requires its members to “provide conspicuous and appropriate information” that permits consumers to know “when they are and are not in an interaction with a health care professional that is covered by the ethical standards of the profession.” On the other hand, the code promulgated by eHealth Ethics Initiative 2000 places a duty upon professionals who provide advice online to abide by the codes that govern their face-to-face relationships. Professionals must obey the licensing and prescribing laws of the “relevant” jurisdiction and advise patients about the limitations of online care. For example, members must “help e-patients understand when online consultation can and when it cannot and should not take the place of a face-to-face interaction with a health care provider.” The code also advises doctors to “do no harm.” DUTY FIRST Although there is no controlling decisional law on point, case law outside the Internet context suggests that the eHealth approach more closely mimics the analysis likely to appeal to the courts. That is, courts often find that physicians were required to abide by professional standards of care even in the absence of a traditional physician-patient relationship. For example, in Millard v. Corrado, 14 S.W.3d 42 (Mo. Ct. App. 2000), Joseph Corrado was scheduled to be on call as the emergency-room general surgeon, but he had to leave town. He arranged for an orthopedic surgeon, Ben Jolly, to cover for him. While Corrado was away, an injured woman was brought to the emergency room. Corrado was paged. In the meantime, Jolly arrived and examined the woman. Not able to perform general surgery, he decided to transfer the woman to another hospital. Corrado called in and concurred in the decision. The woman later sued, claiming that Corrado had breached a duty of care owing to her. The trial court granted the surgeon summary judgment, finding that the plaintiff had not demonstrated a physician-patient relationship. The appellate court reversed, holding that “a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.” Given that Corrado knew that the hospital would not have an on-call general surgeon during his absence, he should have told the hospital that he would not be available. Then the ambulance could have taken the injured woman directly to another hospital. The court found that Corrado had violated a duty to inform the hospital since a “reasonably prudent person should have foreseen that such conduct would create a substantial risk of harm.” The lack of a physician-patient relationship did not matter because the duty existed independently of that relationship. The Corradodecision, based on public policy and the foreseeability of harm, is troubling for e-health sites. A site may successfully avoid creating physician-patient relationships by using well-drafted disclaimers, yet still breach a duty of care. Further, many courts have found a physician-patient relationship and resulting duties based on very minor contacts with a patient. Consider Davis v. Weiskopf, 439 N.E.2d 60 (Ill. App. Ct. 1982). Jerome Weiskopf determined from a knee X-ray that a patient had a giant cell lesion. He then referred the patient to another doctor, Norman Hagman, with whom the patient failed to keep several scheduled appointments. Without ever having seen the patient or his X-ray, Hagman then informed the patient that he would not treat him. The patient did not promptly pursue any other medical advice; eventually his leg had to be amputated. He sued. Because Hagman was a physician, the court said, he had a duty to act. The court reasoned that the consequence of inaction was great (amputation), and the burden of action slight (writing a letter). Thus, “we see no basis for a different rule [than used for actual treatment or consultation] under the unusual circumstances of the present case.” See also Hand v. Tavera, 864 S.W.2d 678 (Tex. App. 1993) (physician-patient relationship created when patient arrives in emergency room and medical plan’s on-call physician is summoned); Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32 (Tex. App. 1993) (relationship created by call from nurse regardless of whether patient knew of call); Bienz v. Central Suffolk Hosp., 557 N.Y.S.2d 139 (App. Div. 1990) (one phone call to physician’s office for purpose of initiating treatment may create relationship). Overall, e-health sites and associated professionals confront the very real possibility that they may be deemed to have breached a duty to act in diverse situations. That risk, coupled with the possibility of personal jurisdiction in 50 states, creates substantial legal exposure. Sites may find it very hard to assess with accuracy the exposure associated with any particular business activity. Insurers may encounter serious difficulty in determining malpractice premiums. But common sense and sound legal advice should help to minimize these risks. Sites should highlight well-drafted disclaimers and continuously educate users about the limits of online health care. And e-physicians should abide by the same ethical codes that govern their profession in the face-to-face world. Susan L. Burke, special counsel at D.C.’s Covington & Burling, is a litigator specializing in health care fraud and abuse. She also counsels e-health companies on compliance and litigation risks. Burke previously prosecuted health care cases for the Justice Department’s Civil Frauds Section. Diana L. Puknys is an associate in Covington’s health care practice.

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