American Journal of Law & Medicine

My computer, my doctor: a constitutional call for federal regulation of cybermedicine.

I. INTRODUCTION

Color it green. In a health care era driven by consumer demand, consumers are increasingly seeking Internet-based health services. (1) Every day approximately seventy-three million Americans access the Internet in search of health information, with an average of six-million people seeking health advice. (2) At present, a supply of over one-hundred thousand health-related websites serve the public's demand for information and advice, with an average of one-thousand five hundred new sites added monthly. (3) Surprisingly, consumers and students make up more than 30% of all health-related website users. (4) From this union of cyberspace and the medical field, cybermedicine has emerged.

What does cybermedicine encompass? Cybermedicine is "the science of applying Internet and global networking technologies to medicine and public health, of studying the impact and implications of the Internet, and of evaluating opportunities and the challenges for health care." (5) General use of the Internet under this definition encompasses exploration and exploitation of the Internet for consumer health education, patient self-support, and professional medical education and research. (6) Issues raised by cybermedicine include the evaluation of the quality of medical information on the Internet, the impact of the Internet on the patient-physician relationship and quality of health care, and the use of global networking for evidence-based medicine. (7) These issues are exacerbated by the fact that cybermedicine is a "wholly different and global discipline, which is powerful, efficient and consumer friendly, incorporating individual and cultural wisdom of world experts." (8)

Identifying the limits of cybermedicine poses a problem given cybermedicine's resemblance to its predecessor: telemedicine. The American Medical Association defines telemedicine as "the provision of health care consultation and education using telecommunications networks to communicate information." (9) Telemedicine more narrowly embodies "the use of electronic communication and information technologies to provide or support clinical care at a distance." (10) Although the terms are often erroneously used interchangeably, telemedicine differs from cybermedicine in many ways. Telemedicine refers to a more "restricted exchange of clinical and confidential data with a limited number of patients and physicians," and includes patient management and diagnosis. (11) A doctor's advice to her patient over the telephone illustrates the kind of exchange of information telemedicine encompasses. (12) Cybermedicine, on the other hand, focuses on the global exchange of information in the realm of "research, primary prevention of diseases (e.g. health-education websites), tertiary prevention of diseases" and much more. (13) Cybermedicine describes a patient and physician interaction over the Internet, either through an online forum or a commercial website offering medical advice. (14) Cybermedical service "includes nearly every facet of the practice of medicine, such as 'marketing, relationship creation, advice and prescribing and selling drugs and devices.'" (15) Clinical computing and medical informatics--the "use of computing to enhance communication in the field of medicine" (16)--allow patients to communicate with physicians via email or online posts to virtual bulletin boards. (17) Cybermedicine and telemedicine together comprise e-health, or, "health services and information delivered or enhanced through the Internet and related technologies." (18)

A limited number of entities provide internal controls on cybermedicine. The health care industry created three agencies to regulate all e-health websites on the Internet and develop codes of conduct for e-health providers, including Health on the Net (HON) Foundation, Health Internet Ethics (Hi-Ethics), and the Internet Health care Coalition (IHC). (19) Non-governmental agencies concerned with medicine and ethics, such as the American Medical Association (AMA) and the Federation of State Medical Boards (FSMB), offer aid to states in filling the statutory gaps created by cybermedicine through proposed model regulations to overcome inconsistencies between state Medical Practice Acts. (20) The FSMB's guidelines encourage use of the Internet, but warn that "e-mail and electronic communications and interactions between the physician and patient should supplement and enhance, but not replace, crucial interpersonal interactions that create the very basis of the physician-patient relationship." (21) These patchwork attempts at regulating cybermedicine, however, reveal the need for uniform cybermedicine regulations with equal application across state lines.

More than 25% of the Internet's content is based on health care and medical information. (22) Unlike technology-driven telemedicine, consumerism powers cybermedicine's expansion. (23) Many perceive this unpredictable and uncharted Internet-driven demand of cybermedicine as the "wild[,] wild west of health care." (24) In some instances, however, cybermedicine may also carry a grave degree of risk to both consumers and providers. (25) These high risks make the need for unified regulation all the more pressing. Cybermedicine's global, uncontrolled and under-regulated nature makes it ripe for the federal government to serve as the regulator.

Federal regulation of cybermedicine initially appears problematic and counterintuitive because the Constitution traditionally reserves the power to regulate medicine to the states. (26) An examination of state e-health statutes, however, makes clear that state regulations are inadequate. (27) State e-health statutes typically do not address cybermedicine at all. The interstate nature of the Internet and the unconventional medical relationships spawned by cybermedicine render state attempts at taming the growing use of medico-cyberspace feeble and ineffective. For exactly these reasons, however, the federal government can regulate cybermedicine under the Commerce Clause. (28) This note takes an in-depth look at how the most technologically progressive states address cybermedicine, and how the federal government factors into this equation.

This note further calls for federal regulation of cybermedicine. The global nature of cybermedicine inevitably raises problems concerning the applicability of state law to communications between doctor and patient across different legal jurisdictions. A federal system better addresses the national scope of the Internet and could create uniform methods for regulating the information transmitted and the care delivered in cyberspace. Federal regulation would allow cybermedicine to develop, while still protecting "patients" treated over the Internet. This note argues that the dormant Commerce Clause preempts state-based regulation of cybermedicine, and gives the federal government the authority to govern this burgeoning area. Through this power to regulate, the federal government should formulate cybermedical regulations addressing licensure of so-called "cyberdoctors", (29) and providing a new definition of the physician-patient relationship.

II. INTRODUCTION TO MEDICINE IN CYBERSPACE: UNTANGLING CYBERMEDICINE

Cybermedicine has many faces and functions, all of which are connected by the Internet (see figure 1). Telemedicine and cybermedicine overlap in a limited sense, as both utilize the Internet for clinical medicine and medical informatics (see figure 1). (30) The difference between the two practices lies in the scope and purpose of the clinical cyber communication. Telemedicine is a confidential exchange between a physician and her local or regional patients for the purpose of monitoring, diagnosing, and treating individual patients. (31) Telemedicine also includes web-based communication between two physicians, such as an e-mail in regards to a laboratory test result. (32) This latter move towards introducing the Internet into a pre-established medical relationship is a response to technology and convenience, but these communications between a doctor and her patients or other doctors still constitute controlled relationships with defined parties. (33)

[FIGURE 1 OMITTED] (34)

In contrast, cybermedicine is a non-confidential exchange between physician and patient, a physician and a physician, or even a patient and non-physician, anywhere around the globe for purposes of patient self-treatment. Cybermedical communications, especially between physician and patient, are far less secure than telemedical exchanges, and involve completely uncontrolled settings and parties. (35) Cybermedical communication lacks the traditional accountability and warranties on communicated information, and the credentials of the source of the information remain questionable at best. (36) Unlike telemedicine, eybermedicine "eliminates the middleman, the licensed, in-state provider." (37) Depending on the source, cybermedicine may encompass many subsets of health care, including medical informatics, public health and clinical medicine. (38) Given the scope of this definition, and the impact cybermedicine may have on millions of users, (39) the lack of effective governance of cybermedical communications could have an alarming impact on consumers.

A. MEDICAL INFORMATICS

Gunther Eysenbach, a Senior Scientist at the Centre for Global eHealth Innovation at the Toronto Research Institute/Toronto General Hospital, (40) defines medical informatics as "the field that concerns itself with the cognitive, information processing, and communication tasks of medical practice, education, and research." (41) Although medical informatics traditionally concerns assisting physicians in information-processing, recent developments have focused on patient use of the medical informatics system to address the needs of the consumer (see figure 2). (42) This shift gives rise to consumer health informatics, which analyses "consumers' needs for information, studies and implements methods of making information accessible to consumers, and models and integrates consumers' preferences into medical information systems." (43)

[FIGURE 2 OMITTED] (44)

Professor Warner Slack, a professor at Harvard Medical School and author of Cybermedicine: How Computing Empowers Doctors and Patients for Better Health Care, defines medical informatics as the use of computing to enhance communication in the field of medicine. (45) Under this definition, medical informatics includes the use of computers to track medical records and transmit test results. Slack argues that "computer programs that help patients and doctors with medical matters" improve the quality of medical care while reducing costs. (46) Slack believes that "good cybermedicine can improve the relationship between the patient and doctor." (47) The benefits of medical informatics shine brightly in the realm of telemedicine, where the ability for a physician to expediently receive test results and alerts via e-mail positively impacts the defined, confidential physician-patient relationship. (48) In contrast, to discern the benefits of medical informatics in delivering cybermedical care over the Internet, one must examine the historical and technological evolution of computers in medicine. …

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