Regulating Medical Practice in the Cyber Age: Issues and Challenges for State Medical Boards
Silverman, Ross D., American Journal of Law & Medicine
"On the Internet, nobody knows you're a dog," says one canine to another as they sit in front of a computer in the classic New Yorker cartoon.1 This can also apply to those who seek or provide medical care online. On the Internet, nobody knows if you're male or female, elderly or adolescent, fit or obese, hirsute or bald, virile or impotent.2 In addition, in many cases, nobody knows if the "physician" or "pharmacist" on the other end of the line is a properly licensed physician or pharmacist, where they are located, what the knowledge level or training of the consulting practitioner is, or whether the medications being shipped are of the appropriate level of quality, potency or dosage.3 And, if the ease with which one is able to procure pharmaceuticals online is any indication, there are plenty of unscrupulous entrepreneurs selling drugs on the Internet who do not appear to care.
The Internet promises to transform the way the practice of medicine is conducted in the new millennium. As the administrative bodies responsible for overseeing the practice of medicine, state medical boards are struggling to find ways to ensure that unscrupulous and unsafe practitioners operating online do not harm those living within their jurisdictions. This Article examines the effect computers and the Internet have on the ability of state medical boards to regulate the practice of medicine, and the responses at the state and federal level to these technological developments. Part I briefly discusses the foundations of the state power to license and regulate medicine. Part II discusses the adoption of technology in society and how it has benefited the physician-patient relationship. Part III describes how computer and Internet technology are used in telemedicine and cybermedicine interactions, and the concerns each raises with regard to medical practice standards. Special focus is given to the Internet pharmacy industry. Finally, Part IV analyzes the state and federal legislative and regulatory actions taken to protect the public health and welfare from unlicensed and substandard medical practices on the Internet, and describes how the challenges of regulating Internet medicine raises new questions concerning the ability of state medical boards to continue traditionally-held responsibilities for regulating medical practice.
II. REGULATION OF THE PRACTICE OF MEDICINE4
The right of states to regulate the practice of medicine is founded upon constitutional grounds and traditional interpretations of states' rights. As the power to regulate the health professions was not specifically entrusted to Congress, the Tenth Amendment reserves such power to the states and the people.5 Under the police power, states have the authority to pass regulations to protect the public health and safety of their citizens.6 Because of the significant impact that medical practitioners can have on the health and well-being of the population, the licensure of medical practitioners is the consummate example of a state's use of the police power to achieve this goal.7
In 1889, the Supreme Court addressed the question of whether states had the power to license medical practitioners in the case of Dent v. West Virginia.8 The Court upheld the state's right to require licensure to engage in medical practice, holding that the establishment of minimum standards for licensure did not violate an individual's property rights as protected under the Fourteenth Amendment.9 While the Court felt that "[i]t is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose,"10 it also believed that the state, in its role of protecting the public, had the right to establish reasonable standards for practice. According to the Court:
There is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. …