Limiting Internet Medical Malpractice Liability

Contract law is most commonly used by medical practices attempting to protect against litigation. In particular, Internet sites are usually associated with terms-of-use agreements. Such agreements contain provisions prohibiting legal claims, compelling arbitration, limiting potential damages and prohibiting Internet postings, among other provisions.

Regrettably for Internet medical practitioners, most jurisdictions ' for example, New Jersey ' have ruled that medical providers may not require patients to waive their rights to recover damages for medical malpractice. The execution of a blanket release that, prior to the provision of medical services, absolves a physician of all liability is considered against public policy, and courts have refused to enforce such agreements.

However, narrower releases have more easily withstood challenges to enforceability. Normally, restriction or exclusion of legal rights may render a release unenforceable. To increase the likelihood that a court will enforce an agreement, the following three issues should be integrated into the Internet terms of use for the Internet medical services.

First, the agreement should not make any attempt to limit the liability of the physician or to change the nature of the physician's duty to the patient.

Second, relevant terms should be conspicuous. For example, print the important terms in a particular typeface in bold and capital letters.

Third, the contract should not be offered without the patient being able to ask questions and receive meaningful answers. Please note that the actual Internet medical service provider (such as a nurse or doctor) need not provide the answers. Any representative of the Internet medical service provider can provide the requested information, if that person is adequately trained.

Legal agreements may limit liability by limiting court options, such as removing the possibility of a jury trial. Alternatively, legal agreements may limit liability by limiting resolution options, such as replacing medical malpractice litigation with arbitration. Internet medical service providers may implement pre-dispute binding arbitration agreements, which are contracts in which both the physician and the patient give up access to a jury trial and traditional court setting.

Turning to Technology

Since medical malpractice involves medical error as determined by state jurisdictional standards and regulations, medical practices may limit their malpractice liability related to their Internet medical practices by technologically limiting its use. One way to implement such a restriction of website use is by employing technology that limits access to the site to those Internet users who reside in jurisdictions having standards favorable to medical practices.

Additionally, some jurisdictions have more favorable (from a medical provider's perspective) medical malpractice recovery statutes, which have been enacted in an effort to decrease hospital and physician costs.

In 2013, malpractice payouts per capita in New York were $39 per resident, which is far greater than second-place Pennsylvania's $24.77 per resident. It is estimated that in 2013, New York had the largest overall payouts of nearly $900 million. As a consequence, medical providers may want to limit or prevent New York Internet users from accessing their sites, and thereby reduce their malpractice liability.

However, low-payout per capita should not necessarily be considered alone for the purpose of restricting Internet users to medical Internet sites. Other things may affect jurisdiction-specific liability exposure; for example, Alabama, which has low rates of malpractice award payouts per capita, is one of 12 states that forbid a cap on medical malpractice awards.

In particular, medical practice Internet sites use software applications that identify Internet visitors' geographical location. This is done by evaluating public information associated with the user's Internet protocol address (IP address)

An IP address is a numerical label assigned to each device. Various databases associate IP addresses with a large variety of location data, including country, region, city, latitude, longitude, ZIP code, time zone, Internet service provider's geographical location, country code, area code, weather station code and name, and mobile carrier.

Once a user's location is established, a medical practice's Internet site may employ a program that is designed to deny access to visitors from jurisdictions with unfavorable medical malpractice rules and regulations. Alternatively, a medical practice's Internet site may employ a program designed to channel visitors to pages specifically designed to meet the standards of the user's jurisdiction.

In the event the software designed to limit or eliminate access to medical Internet site users who are located in unfavorable jurisdictions fails, the medical site providers are still in an arguably better legal position than if they had not tried to restrict unwanted Internet visitors. In particular, they may demonstrate that they had no intent to interact with medical Internet site users who are located in unfavorable jurisdictions.

Each state sets its own definition for what constitutes medical malpractice. Generally, what constitutes malpractice in New Jersey parallels that which is considered malpractice in other states. In New Jersey, medical malpractice occurs when a health-care professional or health-care institution breaches, or violates, the standard of care ' which, in turn, causes harm to the patient.

If a New Jersey Internet medical site attempts to screen users so as to limit its site to users located in New Jersey and fails, then the site's owner would more likely face negligence charges associated with software failure than foreign jurisdictional medical malpractice. This is particularly true if content in question on the New Jersey Internet medical site accurately reflected generally accepted procedures and practices all medical providers in the New Jersey area would use when treating a patient with a particular disorder.

Business Methods

Finally, certain business methods may be used to ameliorate the potential adverse effects of using the Internet to promote a medical practice. Specifically, such medical professionals may obtain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

Jonathan Bick is of counsel at Brach Eichler in Roseland, NJ. This article also appeared in the the New Jersey Law Journal , an ALM sister publication of this newsletter.

Medical practices use the Internet for promotional purposes, such as posting physicians' biographical information, linking websites featuring medical information and hosting medical question-and-answer blogs, among others.

However, even this type of interaction with a health-care provider can lead to a medical malpractice lawsuit. In response to such litigation, medical offices use legal, technological and business methods to defend themselves and ameliorate any adverse effects. All these methods have been deployed with varying rates of success.

The Legal Response

Contract law is most commonly used by medical practices attempting to protect against litigation. In particular, Internet sites are usually associated with terms-of-use agreements. Such agreements contain provisions prohibiting legal claims, compelling arbitration, limiting potential damages and prohibiting Internet postings, among other provisions.

Regrettably for Internet medical practitioners, most jurisdictions ' for example, New Jersey ' have ruled that medical providers may not require patients to waive their rights to recover damages for medical malpractice. The execution of a blanket release that, prior to the provision of medical services, absolves a physician of all liability is considered against public policy, and courts have refused to enforce such agreements.

However, narrower releases have more easily withstood challenges to enforceability. Normally, restriction or exclusion of legal rights may render a release unenforceable. To increase the likelihood that a court will enforce an agreement, the following three issues should be integrated into the Internet terms of use for the Internet medical services.

First, the agreement should not make any attempt to limit the liability of the physician or to change the nature of the physician's duty to the patient.

Second, relevant terms should be conspicuous. For example, print the important terms in a particular typeface in bold and capital letters.

Third, the contract should not be offered without the patient being able to ask questions and receive meaningful answers. Please note that the actual Internet medical service provider (such as a nurse or doctor) need not provide the answers. Any representative of the Internet medical service provider can provide the requested information, if that person is adequately trained.

Legal agreements may limit liability by limiting court options, such as removing the possibility of a jury trial. Alternatively, legal agreements may limit liability by limiting resolution options, such as replacing medical malpractice litigation with arbitration. Internet medical service providers may implement pre-dispute binding arbitration agreements, which are contracts in which both the physician and the patient give up access to a jury trial and traditional court setting.

Turning to Technology

Since medical malpractice involves medical error as determined by state jurisdictional standards and regulations, medical practices may limit their malpractice liability related to their Internet medical practices by technologically limiting its use. One way to implement such a restriction of website use is by employing technology that limits access to the site to those Internet users who reside in jurisdictions having standards favorable to medical practices.

Additionally, some jurisdictions have more favorable (from a medical provider's perspective) medical malpractice recovery statutes, which have been enacted in an effort to decrease hospital and physician costs.

In 2013, malpractice payouts per capita in New York were $39 per resident, which is far greater than second-place Pennsylvania's $24.77 per resident. It is estimated that in 2013, New York had the largest overall payouts of nearly $900 million. As a consequence, medical providers may want to limit or prevent New York Internet users from accessing their sites, and thereby reduce their malpractice liability.

However, low-payout per capita should not necessarily be considered alone for the purpose of restricting Internet users to medical Internet sites. Other things may affect jurisdiction-specific liability exposure; for example, Alabama, which has low rates of malpractice award payouts per capita, is one of 12 states that forbid a cap on medical malpractice awards.

In particular, medical practice Internet sites use software applications that identify Internet visitors' geographical location. This is done by evaluating public information associated with the user's Internet protocol address (IP address)

An IP address is a numerical label assigned to each device. Various databases associate IP addresses with a large variety of location data, including country, region, city, latitude, longitude, ZIP code, time zone, Internet service provider's geographical location, country code, area code, weather station code and name, and mobile carrier.

Once a user's location is established, a medical practice's Internet site may employ a program that is designed to deny access to visitors from jurisdictions with unfavorable medical malpractice rules and regulations. Alternatively, a medical practice's Internet site may employ a program designed to channel visitors to pages specifically designed to meet the standards of the user's jurisdiction.

In the event the software designed to limit or eliminate access to medical Internet site users who are located in unfavorable jurisdictions fails, the medical site providers are still in an arguably better legal position than if they had not tried to restrict unwanted Internet visitors. In particular, they may demonstrate that they had no intent to interact with medical Internet site users who are located in unfavorable jurisdictions.

Each state sets its own definition for what constitutes medical malpractice. Generally, what constitutes malpractice in New Jersey parallels that which is considered malpractice in other states. In New Jersey, medical malpractice occurs when a health-care professional or health-care institution breaches, or violates, the standard of care ' which, in turn, causes harm to the patient.

If a New Jersey Internet medical site attempts to screen users so as to limit its site to users located in New Jersey and fails, then the site's owner would more likely face negligence charges associated with software failure than foreign jurisdictional medical malpractice. This is particularly true if content in question on the New Jersey Internet medical site accurately reflected generally accepted procedures and practices all medical providers in the New Jersey area would use when treating a patient with a particular disorder.

Business Methods

Finally, certain business methods may be used to ameliorate the potential adverse effects of using the Internet to promote a medical practice. Specifically, such medical professionals may obtain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

Jonathan Bick is of counsel at Brach Eichler in Roseland, NJ. This article also appeared in the the New Jersey Law Journal , an ALM sister publication of this newsletter.