Creating a cyber doctor-patient relationship

Scenario: At what point does providing information become providing care?

As patients turn to the Internet to find health information, some are finding physician Web sites that provide more than just information. Some sites offer services that were once only available during a face-to-face encounter between patient and doctor. At what point does providing medical information constitute a physician-patient relationship?

Reply:

The World Wide Web is cluttered with medical sites. It has been estimated that a quarter of the Internet is now devoted to some aspect of health care.

There are an increasing number of sites sponsored by physicians which provide information on virtually every medical condition. Usually these physician sites are often described as being of two primary types: sites that offer generic medical and health information or the sites that provide varying degrees of advice.

Both types of physician sites, informational and advisory, present opportunities and problems and push patient-physician relations into largely uncharted territory.

The use of the Web by physicians to provide medical information and advice is hardly the environment in which legal and ethical standards in medicine evolved. Yet in considering the implications of Web-based interactions on the patient-physician relationship, we are dealing with an arrangement that lies at the heart of both medical law and ethics.

Undoubtedly, the nature of the patient-physician relationship has been altered over time. But even with recent system pressures, such as the emergence of third-party decision-makers who control financial resources, the patient-physician relationship has continued to be grounded in a tradition of physical presence.

Questions about the existence and scope of patient-physician relationships have often been shaped by assumptions of this traditional environment. Questions have arisen about whether a patient-physician relationship is struck by a mere telephone call, or by a consultant's examination of a medical record, but such scenarios are not the norm.

At first blush, it is easy to argue that the Web environment is unable to foster the traditional physical presence requirement for a patient-physician relationship. But the element of physical presence, traditional as it may be, is not the essence of the patient-physician relationship. Rather the existence of the relationship rests on whether the service being provided falls within the scope of medical practice.

Medical practice generally includes treatment, prescribing, diagnosis and/or offering patient-specific medical advice and information such as prognostic information. Just as a telephone call can be a vehicle to create a professional relationship if a physician is providing information that fits within the scope of medical practice, so too can the Web.

Typically, a patient-physician relationship is created in a situation of mutual assent where both parties are aware of, and agreeable to, the existence of the professional relationship. This mutuality isn't usually present in e-health situations. Rather it is the behavior of the cyber doctor through the information provided to the user which unilaterally creates a physician-patient relationship. If the information goes beyond generic information and becomes user-specific information, and if it constitutes diagnosis and/or advice, it seems reasonable for the user to conclude that there is a professional relationship.

In contrast, the physician who provides only generic information to users, regardless of detail, is least likely to develop a patient-physician relationship.

Nevertheless, two types of information-only sites can be identified. In the first category are sites on the Web where a physician provides the user with generic information about a given medical problem or disease. This general information is comparable to a health care newsletter and designed strictly for user education.

The second type of information-only Web site may be somewhat more targeted to the user, providing information addressing specific user questions. For example, if a middle-aged diabetic asks a question about heart disease in diabetics, the Internet doctor may provide very detailed information about diabetes and heart disease in response. The physician is likely to cross the line only if the information offered is tailored to the specific patient's symptoms and alleged medical history. The provision of detailed information in such a scenario strongly resembles the practice of medicine.

Moreover, there are a number of "ask the doctor" sites where patients, for a fee, can obtain various types of information from a cyber doctor, based on information provided by the user. It is likely that the cyber medical dialogue will be couched in cautious language, such as, " based on what you have told me, I believe ...." And, of course, following this statement should be a disclaimer and a recommendation that the user should still visit his or her individual physician. But, regardless of cautious language and disclaimers, "ask the doctor" sites move very close to patient-physician relationships, and at the very least a duty to provide accurate and unbiased information exists.

If the appropriate warranties are offered, it is somewhat less likely that a traditional relationship will be created, but warranties can falter where the information is too specific and authoritative. For example, if a frequent online user is not following up with a treating physician, the cyber doctor has an ethical responsibility to help the user find traditional care.

The Internet, like the telephone, can be used to provide services that fall within the bounds of medical practice and that constitute the initiation of patient-physician relationships. It is important that physicians be aware of their ethical and legal responsibilities, set clear parameters around relationships with patients, meet licensure requirements and secure sufficient medical liability coverage.

Be aware of obligations

The physician who is foolish enough to believe he or she can't establish a patient-physician relationship over the Internet, or who relies on disclaimers in the face of offering patient-specific medical information, is compromising her or his professionalism and taking legal risks.

It is not inconceivable that cyber doctors will one day provide detailed assessments to Internet users who grant access to their individual medical records. It is also conceivable that the cyber doctor could be brought into the treatment loop and be viewed as a type of consultant to the user's attending physician. Audio and visual computer technology may move Internet medicine closer to telemedicine, further muddying the distinctions between user and patient.

While deciphering the nature of the Internet patient-physician relationship should take us back to the past, the future will no doubt require new practice standards that are somehow rooted in cyberspace.

--John Blum John J. Waldron Research Professor of Health Law at Loyola University, Chicago School of Law, Institute for Health Law