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Australia: Legal dangers for cybermedicine

Document Citado por Relacionados
Vincent
AutorLeif Gamertsfelder
CargoLawyer. Deacons Graham and James

"Legal dangers for cybermedicine"

There are over 10,000 web sites dedicated to health care on the Internet. However, the legal risks associated with cybermedicine are not widely discussed.

"In Australia, cybermedicine providers have to be aware of the impact of a complex web of laws that could impact on their online activities, including the law of negligence and health care legislation," according to Leif Gamertsfelder, an e-commerce lawyer at Deacons Graham & James.

A normal medical negligence case typically involves the misdiagnosis or mistreatment of a patient by a doctor or a hospital not meeting professional standards or not obtaining informed consent from patients. However, potential liability in cyberspace is expanded to include exposure to managed care organisations and pharmaceutical manufacturers providing information online.

Normally, health care providers that publish health related information have been insulated to a degree from negligence actions even if the publications they provide to the public have been misleading or incorrect. This is because the courts insist that a plaintiff must fall within a foreseeable class of persons affected by the information before a plaintiff can recover damages.

Also, a plaintiff must actually rely on the defective information that gives rise to their claim for damages. Traditional publications, such as print or television advertising, rarely target a specific person or class of persons.

"On the other hand, web site interaction in cyberspace and technologies such as cookies allow a high level of profiling and product targeting to the personal needs, wants, symptoms and conditions of the web site user," said Mr Gamertsfelder.

"It's arguable that a health care provider practising cybermedicine can foresee that the web user being provided with medical advice or products falls within a specific class of people who may suffer loss or injury if the advice or products are negligently provided," said Mr Gamertsfelder.

In Australia, a health care provider’s legal exposure in cyberspace may also be increased due to the operation of the laws of each jurisdiction in which the Internet is accessible. For example, under Queensland’s Medical Act it is unlawful for anyone other than a medical practitioner registered in Queensland to hold themselves out (expressly or implicitly) as being a medical practitioner or being qualified to practise medicine in Queensland. If a court were to deem the provision of...

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