Challenges to the Liability of Health Professionals

Health providers and patients alike will undoubtedly benefit from the increased access to health care services and information delivered via telecommunications. However, medical malpractice issues and accompanying risk management considerations are everyday concerns for most healthcare providers. Through the Internet, an individual can contact and create a professional relationship with a healthcare provider in cyberspace. Certain medical diagnoses and treatments can be provided without the necessity of the element of physicality. This raises concerns by healthcare providers on how the use Internet may affect their liability. The main basic principle in tort law is that no cause of action for negligence exists unless the defendant owes the plaintiff a legal duty of care. Whether a duty to the patient exists will play a key role in telemedicine malpractice cases. The problem that may be faced by the courts is that the increased efficiencies of technologically oriented health care delivery system may cause a blurring of the lines between actions which may or may not give rise to provider-patient relationship. A healthcare provider diagnosing or treating a patient via telecommunications will be confronted with the following questions:

(a) Is a provider-patient relationship established during telemedicine consultation?

(b) What is the appropriate standard of care for telemedicine?

(c) Modern information technologies have the potential for the boundaries of the body of knowledge to be expanding constantly, thus, at what point will health information become part of the body of knowledge of which a reasonable health professional would have been aware?

(d) What is the provider’s liability for a missed diagnosis due to technological (rather than human) error?

(e) What injuries might a patient suffer or claim to suffer which would stem from long distance health care?

(f) Since telecommunications allow medicine to be quickly and efficiently practices across state boundaries, jurisdictional issues would arise on where the healthcare provider should be sued and who is to decide this?

(g) What is the scope of the medical practitioner’s duty of confidentiality of patient information in telemedicine consultations? Are healthcare providers be made aware of the privacy and confidentiality issues that arise in the use of e-mail, fax and even telephone in the discussion of sensitive health information?

The Malaysian Telemedicine Act 1997 does not provide answers to these questions. Presently, there are also no legal precedents in Malaysia that can provide clear answers to these questions, since to date no medical malpractices involving telemedicine have been decided by the Malaysian courts. However, there are several cases in the United States involving telemedicine that may provide a preliminary guide to the ways in which the courts may answer these questions in future. In Lopez v Aziz , the Texas Court of Appeals was asked to review whether a physician-patient relationship exist in a case in which a consulting obstetrician spoke by telephone with the patient’s regular physician. The court placed great emphasis on the fact that the patient was never contacted or examined by the consultant and that the patient’s chart had never been reviewed.The court made the following statement, which continues to be cited by courts in other jurisdictions; “To expose physicians…to liability for simply conferring with a colleague would be detrimental in the long run to those seeking competent medical attention and is contrary to the public policy in this state.”

In another Texas case of Wheeler v Yettie Kersting Memorial Hospital, the court found that a physician-patient relationship was created when an on-call physician received information via the telephone from a nurse at the hospital regarding the status of a woman in labour. The on-call physician used the information to determine that the patient could be sent to a hospital over ninety miles away. Less than an hour into the journey, the patient began delivering a breech position baby which died when her cervix clamped shut around the baby’s neck, thus, suffocating him. The court held that, the oncall physician established a physician-patient relationship with the patient because he had evaluated the status of the patient’s labour and gave approval for the transfer, even though he had no prior contact with the patient other than one phone call from the nurse.