When Louis Brandeis and Samuel Warren introduced the phrase “the right to privacy” as the title of an article in the Harvard Law Review in December 1890, they were primarily concerned about a right of privacy from the news media. “The press,” they wrote, “is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.”

There is little quarrel that access by medical and health policy researchers to medical records and claims data has spurred advances in quality and access to medical treatment. Nevertheless, dissatisfaction lingers with the regime used to regulate access to that information. The American regulatory regime on medical record access has politely been characterized as “fragmented” and less politely as a “black hole.” U.S. Senator Edward M. Kennedy asserts, “[t]oday, video rental records have greater protection than sensitive medical information.” At the center of this dissatisfaction is the question of how much say an individual should have in letting others—even those with legitimate need—look at and use an individual's records.

In the decades since the United States Supreme Court’s consideration of informational privacy in Whalen v. Roe, a couple of worthy candidates to fulfill Justice Brennan's premonition of “future developments” have emerged. One is the nature of information technology itself. Today, sensitive health care data are generated, stored, transferred, and deployed toward countless uses with astonishing facility. An inexorable shift toward computerized medical records and fully automated storage and transfer of patient information is well underway.

Patients continue to find new ways of reaching their physicians. In the past, patients and their health care providers developed relationships through the course of everyday affairs and across a wide variety of social exchanges. Although other methods of communicating were introduced into the medical context, telephones, pagers and voicemail all retained some connection to individual voices. Moreover, medical practitioners and patients alike never anticipated that these technologies would substitute for genuine personal interactions. Nor did they anticipate that another new technology, electronic mail (e-mail), would shift communications back in time to the days when letter writing formed the basis for diagnosing and relating. E-mail in medical practice has already begun to reconfigure the patient-physician relationship in the electronic age.

Telemedicine became a significant part of the health care equation long before we realized what it was or how important it will be in the future. Telephone discussions and consultations between health care providers have been a part of medical practice since Alexander Graham Bell gifted society with telephones. Furthermore, who among us has not been transfixed watching and learning about open heart surgery on cable television? Propelled by the information superhighway and the breadth of emerging computer and communication technologies, telemedicine will change the face of medicine and methods of interaction between providers and patients. Access, quality and cost of health care may all improve, but not without the sacrifice of some time-honored norms in medical practice.

This Article examines the content-related liability exposure of health care providers operating in cyberspace (cybermedicine). The Article maps real space theories of liability such as professional negligence, misrepresentation and products liability to cybermedicine fact patterns.

This Article examines cybermedicine in contrast to the more widely discussed but narrower issue of telemedicine. The latter typically refers to technologies, primarily preconvergence telephony, satellite and video, used to patch geographical holes in health coverage. Thus, telemedicine is to medicine what distance learning is to education. Just as telemedicine technologies and goals have been more limited, so too have the legal issues been analyzed in a narrower regulatory or licensure issues.

Dr. X, a urologist, has just told his patient, Mr. Y, a fifty-eight-year-old businessman, that he has prostate cancer. The revelation was difficult for both parties, but it did not come as a complete surprise because it had been preceded by a multistep diagnostic process. Although hoping for better, Mr. Y and his wife were expecting this bad news when they went into the doctor's office.

After offering some words of hope and encouragement, Dr. X tells the patient and his wife that, before they discuss any further the important choices that lie ahead in the treatment of Mr. Y's condition, he would like them to take time to review carefully the information contained in the CD-ROM program he has just handed them. The program, entitled “Living with a Diagnosis of Prostate Cancer,” is one of a library of such programs developed and marketed by a company specializing in computer-based patient education products.

Over the last few decades, the U.S. health care system has been the beneficiary of tremendous growth in the power and sheer quantity of useful medical technology. As a consequence, our society has, for some time, had to make cost-benefit tradeoffs in health care. The alternative—funding all health care interventions that would produce some health benefit for some patient—is not feasible, because it would effectively consume all of our resources.

Modern American medicine is far from ideal. Physicians practice by rules learned in medical school, rules often based on anecdotes or untested hypotheses. Medical opinion leaders shape practice by their own experience even though anecdotes are no substitute for clinical studies. Pressures to diagnose and treat come from pharmaceutical companies, equipment manufacturers, hospitals and managed care organizations (MCOs). The end result is often too much medicine or too little, but rarely the appropriate amount. Patients can end up suffering iatrogenic effects of infections picked up during hospital stays, complications from surgery or drug side effects or “cascade effects” that occur when several interventions fail in succession.

Nursing homes perform a vital function in the long-term care continuum by providing nursing care around the clock to the elderly and disabled. By entrusting these institutions with society's frailest members, the general population relies on government agencies and their regulations to ensure that the elderly receive quality care. States expect quality care, but providers often lack the financial support and regulatory guidance.

Recently, the conflict between reimbursement and quality care received national attention. Vencor, the U.S.'s second largest nursing home chain, attempted to terminate its Medicaid contracts and evict all its Medicaid residents. Executives explained that the contract terminations and resident evictions were strategies to make room for higher paying private pay residents. Faced with state, and potentially federal, fines, as well as a district court injunction and public outrage over the patient dumping, the company quickly abandoned its policy and apologized.