CAMLAW: Complementary and Alternative Medicine Law Blog

Case Studies of CAM Legal Issues - Online Health Services

Below is a case study of CAM legal issues involving a client seeking to offer online health services. The client, an MD, sought effective consultation for a new, entrepreneurial venture, while controlling legal fees.

Problem: This was a board-certified specialist who sought to publish a book about herbal care on-line as "T. Smith, MD, board-certified," and then offer specialized health care services through the Web. She had checked her own state licensing laws and the bylaws for her state board, yet found nothing addressing physician pseudonyms. She also found nothing responsive to offering advice on-line advice about use of herbal products for certain conditions. Given the lack of guidance from the appropriate regulatory board, she sought help structuring her proposed new business to reduce potential liabilities.

Approach: We drafted a medical disclaimer to help limit any consumer confusion and misunderstanding about the informational advice concerning herbal products that she would be offering. We also grilled the attorney for the state medical board to ensure that the MD's innovative approach, involving CAM practices, would not subject her to unnecessary physician discipline under ambiguous regulatory language prohibiting 'practices not generally accepted within medicine.'

The MD understood that a pseudonym would not protect against potential liability related to the writing, but rather would protect her identity-at least temporarily-from readers. On the other hand, the physician pseudonym might confuse the public into thinking that the someone was posing as an MD, and thereby trigger an unwanted medical board investigation and for claims and fraud or malpractice.

We also discussed the tradeoffs involved in balancing a desire for privacy against potential marketing and other income opportunities from being more public about her interest in herbs. We talked about whether and how disclosures and consent forms might make this aspect of her private practice legally safer.

Result: The client decided to keep her name private for the moment using the pseudonym, but to limit on-line advice to educational segments about different herbal options. She understood that giving medical advice via email was potentially risky, particularly absent a physician-patient relationship involving a physical exam. We reviewed the relevant laws and regulations, and worked together to structure her proposed, Web-based business to walk the fine line between the prohibited practice of telemedicine, and the permitted offering of information about herbal products, on a more generic basis, via online, virtual educational seminars.

See also Case Study: Wellness Center.

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Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173