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I also have a considerable advantage over any Internet source. I meet patients face-to-face, giving me the opportunity to form a bond of trust that can ultimately withstand any threat electronic quackery might pose.
So what does all this have to do with forensic obstetricians and gynecologists? A lot. Internet-armed patients’ cutting-edge knowledge creates loftier expectations. Every attorney with Internet access can research all relevant medical literature on a potential medical malpractice case in less than an hour, including multiple medical expert witnesses’ opinions and immediate analysis of strengths and weaknesses. There’s nothing wrong with that, and medical expert witnesses should welcome better-prepared attorney clients. However, that means we have to be better prepared as well, and that’s not easy considering we have to be conversant with much more of our specialty’s literature than ever before. Like the patient who has become an expert on her specific illness, her attorney can likewise become an expert on a specific obstetrical or gynecological topic. Lawyers today expect and are entitled to more from their medical expert witnesses than in the past. We can similarly expect a more sophisticated cross-examination. What’s a forensic obstetrician/gynecologist to do?
We have computers, too. A recent American Medical Association (AMA) survey found that an increasing number of physicians are using the Internet. Our extensive medical knowledge will assist us when we go online since we will be better prepared, wading through the detritus to find pertinent articles and data bolstering our opinions. We will then be better armed to refute other medical expert witnesses’ baseless opinions or junk science presented as medical fact. All concerned should welcome the introduction of scientific truth into medical malpractice courtrooms.
The practice of medicine on the Internet raises much more troubling issues. There are an estimated 20,000 health sites currently on the web. What assures the accuracy of information available to our patients? It’s not much of a stretch to imagine yourself a medical expert witness against a celebrity web doctor. The October 18, 1999, issue of American Medical News reported that talk-show doc Dean Edell, an ophthalmologist, inked a fifteen-year deal with Healthcentral.com for use of his name plus help in creating and marketing the site’s medical content.
Even highly-respected former Surgeon General of the United States C. Everett Koop came under fire in mid-1998 shortly after opening his web site. With more than 5 million hits per month DrKoop.com had become a wildly popular Internet destination for surfers seeking health information. Not only is there canned information but visitors can ask physicians’ advice. An exposé in The New York Times criticized Koop for taking money from site advertisers such as pharmaceutical manufacturers, and Yahoo! Internet Life magazine (YIL) reported his interest in the site to be worth $50 million, quoting Koop as saying,
| "I realized there were two messages that were very important to my patients. One was: Take charge of your own health... The other was: There is no prescription that I can give you that is more valuable than knowledge... The Internet is invaluable in this." |
YIL also reported fourteen healthcare institutions paid $40,000 each for the privilege of being described as the "most innovative and advanced...across the country". Koop maintained that the site made several changes in response to The New York Times article, adding that he was 83 years old and his $50 million was only paper money. "If I were going to sell out to someone for money, I would have done it long ago on [the issue of] tobacco." He believes the biggest problem in healthcare is uninsured patients, with the Internet possibly the only reasonable solution. "E-mail can bring doctors and patients much closer," says Koop. "There will be a new relationship between doctors and patients, with the Internet as an intermediary and educator." Although he agrees that people may follow incorrect or dangerous Internet advice, Koop believes this is analogous to the availability of good and bad physicians, both of whom have always been around. He feels the problem "will sort itself out" and is a proponent of "branded" web sites which would assure medical content conform to established ethical and medical standards.
Branded health sites may never become a reality. Besides, don’t patients already spurn brand name pharmaceuticals for unregulated over-the-counter herbal and holistic medicines? It’s impossible to prevent people making flawed decisions but we all know what will happen if a judgment-impaired web-surfing patient suffers harm after taking advice from an Internet medical site. Her web browser will soon be searching for the keywords attorney, plaintiff and medical malpractice.
What will the complaint allege? For starters how about failure to obtain a complete medical history, failure to examine before treating, and failure to obtain proper informed consent? Maybe the advising physician is not licensed to practice in the patient’s home state. What if the cyberdoc prescribes or even provides medications across state lines and serious harm or death results? The attorneys general of Michigan, Kansas and Missouri have already brought actions against Internet clinics and pharmacies. It’s not hard to imagine every federal agency from the DEA to the FBI battling state authorities for jurisdiction in regulation, enforcement, and litigation. Why think small? Telemedicine crosses international borders as easily as state lines.
Health law attorney Wayne J. Miller authored an excellent review of the liability risks associated with medical web sites in the Winter 2000 issue of California Physician. Miller specializes in Internet medicine and that alone speaks volumes. He recognizes the risk exposure inherent in medical web sites and advises they have legal counsel throughout site planning and implementation. He specifically decries e-mail as inappropriate for on-line medical consultations because it is often neglected or answered sporadically. It also limits information available to both the physician and the patient. According to Miller, California law requires telemedicine consultations be conducted in real-time through two-way video and audio links. Any web site providing diagnosis and treatment cannot base its services only on patient questionnaires and must make in-person follow-up available. Finally, cyberdocs are expected to comply with all 50 states’ medical practice laws.
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