An Ehealth Diptych: The Impact of Privacy Regulation on Medical Error and Malpractice Litigation

Abstract

This is the third in a series of articles exploring the liability implications for technologically-mediated health care. In the first, Cyber-Malpractice: Legal Exposure for Cybermedicine, 25 Am. J. Law & Med. 327 (1999), I primarily looked at online providers and the difficulties faced in constructing causes of action against online medical advice sites. In the second, Structural and Legal Implications of e-Health, 33(4) J. Health L. 606 (2000), I explored some of the more fundamental structural changes wrought by eHealth and outlined some of their implications for liability models. In this article I argue that two well-publicized and pressing health care issues, ensuring the privacy of health information and combating the medical error problem, are closely related. I argue that they find common ground in process re-engineering and the adoption of technologies that, at an operational level, will intersect and frequently combine. The article also explores how infrastructure developments and how some unintended consequences of the HIPAA Privacy Regulations will have important effects on malpractice law and process, in some cases shifting the balance much further towards plaintiffs.

JEL Classification: I18, K13, K32, K41