Cyber-Malpractice: Legal Exposure for Cybermedicine

Nicolas P. Terry

doi:10.1017/S0098858800010935

Cyber-Malpractice: Legal Exposure for Cybermedicine

Published online by Cambridge University Press: 24 February 2021

Nicolas P. Terry

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Nicolas P. Terry*: Affiliation:
Saint Louis University

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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.

Type: Articles
Information: American Journal of Law & Medicine , Volume 25 , Issue 2-3: Electronic Medical Information: Privacy, Liability & Quality Issues , 1999 , pp. 327 - 366

DOI: https://doi.org/10.1017/S0098858800010935 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 1999

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‡

Mention of a particular website in this Article is for illustrative or hypothetical purposes only. There is no suggestion and no suggestion should be taken that publishing a cybermedicine website itself constitutes actionable behavior or that sites mentioned herein have practiced cyber-malpractice or are liable on any other theory.

References

1 For the classic exposition on virtual space or cyberspace, see Mitchell Kapor & John Perry Barlow, Across the Electronic Frontier (Electronic Frontier Foundation, Washington D.C.), July 10, 1990 (visited Apr. 20, 1999) <http://www.eff.org/pub/Publications/John_Perry_Barlow/electronic_frontier.eff>. Real space is used in this Article as the antonym to cyberspace, signifying the physical world.

2 See Daniel McCarthy, The Virtual Health Economy: Telemedicine and the Supply of Primary Care Physicians in Rural America, 21 Am. J.L. & Med. 111, 112 (1995).

3 See id. at 112-16. For example, California has defined telemedicine as "[t]he practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes 'telemedicine' for purposes of this section." Cal. Bus. & Prof. Code 2290.5(a)(1) (West 1999).

4 Cf. Helen Leskovac, Distance Learning in Legal Education: Implications of Frame Relay Videoconferencing, 8 Alb. L.J. Sci. & Tech. 305 (1998) (discussing distance learning as applied to legal education).

5 For examples of federal and state regulation of telemedicine, see Cal. Health & Safety Code § 1374.13 (1999) (recognizing telemedicine as a legitimate means of receiving medical care by defining and regulating payment for telemedicine under Medi-Cal). See generally Rackett, Christina M., Telemedicine Today and Tomorrow: Why "Virtual" Privacy is Not Enough, 25 Fordham Urb. L.J. 167, 183-90 (1997)Google Scholar (discussing existing federal telemedicine legislation and proposing changes). Cf. Metpath, Inc. v. Myers, 462 F. Supp. 1104, 1108-13 (N.D. Cal. 1978) (examining the constitutionality of a California regulatory statute authorizing the state to revoke or suspend the license of a clinical laboratory that advertises to the public).

6 See Julie M. Kearney, Telemedicine: Ringing in a New Era of Health Care Delivery, 5 Commlaw Conspectus 289, 297-300 (1997) (discussing how telemedicine is making changes in licensure laws necessary because of interstate access issues). See, e.g., Katie Wood, Physicians, Physician's Assistants, and Respiratory Care: Require Out-of-State Physicians Who Provide Patient Care in Georgia Via Telemedicine to Hold Georgia License, 14 Ga. St. U.L. Rev. 238 (1997) (discussing Georgia's statute mandating licensing of physicians who enter the State for consultation via telemedicine).

7 See Caryl, Christopher J., Note, Malpractice and Other Legal Issues Preventing The Development of Telemedicine, 12 J.L. & Health 173, 179 (1998)Google Scholar; Linda C. Fentiman, The Legal Questions From Tele-Medicine Five Major Issues Emerge, N.Y.L.J., Aug. 3, 1998, at 7; Phyllis Forrester Granade, Medical Malpractice Issues Related to the Use of Telemedicine—An Analysis of the Ways In Which Telecommunications Affects the Principles of Medical Malpractice, 73 N.D. L. Rev. 65, 87 (1997) (discussing how not having a state license affects telemedicine and negligence liability); Christopher Guttman-McCabe, Telemedicine's Imperiled Future? Funding, Reimbursement, Licensing And Privacy Hurdles Face A Developing Technology, 14 J. Contemp. Health L. & Pol'Y 161, 169, 171 (1997) (stating that physician licensing and differing state regulations inhibit telemedicine's growth). See generally Herscha, Lynette A., Is There a Doctor in the House? Licensing and Malpractice Issues Involved in Telemedicine, 2 B.U. J. Sci. & Tech. L. 8 (1996)Google Scholar (discussing both licensure and malpractice standard-setting issues).

8 See generally Beverly J. Tyler, Cyberdoctors: The Virtual House-call—Actual Practice of Medicine on the Internet is Here, 31 Ind. L. Rev. 259 (1998) (discussing the Cyberdoctors website and how it demonstrates unique interactions between health care providers and patients).

9 See generally id. (discussing how the Cyberdoctors website uses the Internet to give medical advice and treatment).

10 See generally Kane, Beverly & Sands, Daniel, Guidelines for the Clinical Use of Electronic Mail with Patients 5 J. Am. Med. Inform. Ass'n. 104-11 (1998)Google Scholar PubMed (discussing the use of electronic mail (e-mail) for communicating between physicians and patients); Kenneth W. Goodwin, Ethics, Computing, and Medicine (Cambridge Univ. Press 1998) (discussing the use of information technology in the provider-patient relationship).

11 The typical malpractice case involves a misdiagnosis or mistreatment of a patient by a doctor or hospital, implicating professional standards or informed consent.

12 I have been using this phrase for some time, see Nicolas P. Terry, Apologetic Tort Think: Autonomy and Information Torts, 38 St. Louis L.J. 189 (1993). I make no particular claim to its originality, see Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 Harv. J.L. & Tech. 65, 132 (1992) (using the phrase "information tort"). Also note that the phrase informational tort is often found in discussions of privacy law and theory.

13 As noted by David Johnson and David Post:

Cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location. The rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior; (2) the effects of online behavior on individuals or things; (3) the legitimacy of a local sovereign's efforts to regulate global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply. The Net thus radically subverts the system of rule-making based on borders between physical spaces, at least with respect to the claim that Cyberspace should naturally be governed by territorially defined rules.

Law and Borders—The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1370 (1996).

14 Viagra was officially available in the United Kingdom later than in the United States, but not as part of the socialized National Health Service package. See John Vidal, Desperately Seeking Viagra, The Guardian (London), Sept. 26, 1998, at 3, available in 1998 WL 18667701.

15 See Hope Viner Samborn, Small World, Big Questions, Aba J., Feb. 1999, at 78 (discussing the importance of establishing jurisdictional rules for the Internet to limit liability).

16 CyberPharmacy (visited Jan. 25, 1999) <http://www.cyberpharmacy.com>.

17 Cyberdocs (visited Apr. 16, 1999) <http://www.cyberdocs.com>. See infra note 183 and accompanying text.

18 CyberPharmacy (visited Jan. 25, 1999) <http://www.cyberpharmacy.com/content/new_prescription.htm>. Of course, we already have some real space quasi-integrated services in, for example, retail ophthalmology and optometry. See, e.g.. The LensCrafters Eye Exam Advantage (visited Feb. 5, 1999) <http://www.lenscrafters.com/eyecare/buyglasses/lensexam.html> (stating that "Located next to every LensCrafters is an affiliated Licensed Doctor of Optometry.").

19 See, e.g., American Library Ass'n v. Pataki, 969 F. Supp. 160, 161 (S.D.N.Y. 1997) (stating that "[n]ot surprisingly, much of the legal analysis of Internet-related issues has focused on seeking a familiar analogy for the unfamiliar").

20 See, e.g., Johnson v. Kokemoor, 545 N.W.2d 495 (Wis. 1996) (alleging the physician failed to obtain the plaintiffs informed consent for surgery).

21 I ignore what I view as "false" cybertorts, such as the real space battery of the plaintiff whom the defendant first met some months earlier in a cyberspace chat room. See Man Receives 40 Years in Killing That He Mentioned Online, N.Y. Times, Oct. 9, 1998, at A17 (visited Feb. 5, 1999) <http://www.nytimes.com/library/tech/98/10/biztech/articles/10confession.html>.

22 See Robert P. Merges, The End of Friction? Property Rights and Contract in the "Newtonian " World ofOn-Line Commerce, 12 Berkeley Tech. L.J. 115, 116-17 (1997) (comparing conventional transaction costs to the costs generated through online transactions).

23 See id.

24 Hilary Bower, Open Wide and Say Ah, The Guardian (London), Jan. 12, 1999, at 14, available in LEXIS, News Library, GUARDN file (quoting Lynne McTaggart).

25 See, e.g., Arato v. Avedon, 858 P.2d 598 (Cal. 1993); Truman v. Thomas, 611 P.2d 902 (Cal. 1980); Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997).

26 See Ira S. Nathenson, Internet Infoglut and Invisible Ink: Spamdexing Search Engines with Meta Tags, 12 Harv. J.L. & Tech. 43, 90 (1998).

27 Docs Explore whether Online Medicine is Good Medicine, Med. Indus. Today, Aug. 7, 1998, available in LEXIS, News Library, MEDTDY File.

28 Direct-to-consumer (DTC) advertising targets its advertising directly to the ultimate consumer, in this case, the patient. See Draft Guidance for the Industry, Consumer-Directed Broadcast Advertisements; Availability, 62 Fed. Reg. 43,171, 43,172 (1997).

29 See generally Kristen Green, Note, Marketing Health Care Products on the Internet: A Proposal for Updated Regulations, 24 Am. J.L. & Med. 365 (1998) (discussing the extent of drug promotion on the Internet).

30 See Rebecca O'Neill, Surrogate Health Care Decisions for Adults in Illinois: Answers to the Legal Questions that Health Care Providers Face on a Daily Basis, 29 Loy. U. Cm. L.J. 411, 461 (1998).

31 See generally Kenneth S. Abraham & Paul C. Weiler, Enterprise Liability and the Evolution of the American Health Care System, 108 Harv. L. Rev. 381, 381 (1994) (describing the developing trend toward institutional liability rather than individual liability).

32 See discussion infra Part IV.

33 The learned intermediary doctrine holds that an adequate warning by a prescribing physician discharges a manufacturer's duty to warn. See Joseph G. Blute, Courts Struggle with the Learned Intermediary Rule Exceptions, Prod. Liab. L. & Strategy, May 1997, at 3, 3.

34 See, e.g., Ortho Pharmaceuticals Corp. v. Chapman, 388 N.E.2d 541, 549 (Ind. App. 1979) (finding the pharmaceutical manufacturer not liable under a strict tort liability theory).

35 Courts have permitted pharmaceutical manufacturers to externalize these costs by holding that a manufacturer's "liability turns on whether it sufficiently warned [the prescribing physician] of a drug's dangerous propensities." Crisostomo v. Stanley, 857 F.2d 1146, 1152 (7th Cir. 1988).

36 See Barry R. Furrow, Enterprise Liability for Bad Outcomes from Drug Therapy, 44 Drake L. Rev. 377,387(1996).

37 See discussion infra Part V.

38 See Joel Rothstein Wolfson, Electronic Mass Media Information Providers and Section 552 of the Restatement (Second) of Torts: The First Amendment Casts a Long Shadow, 29 Rutgers L.J. 67, 118 (1997) (stating courts are hesitant to apply liability to "mass information providers," such as those on the Internet).

39 See id. (discussing the liability of mass information providers for negligently creating or disseminating information).

40 See id. at 73.

41 See id. at 105.

42 See id.

43 See generally Stanley Sporkin, Reforming the Federal Judiciary, 46 SMU L. Rev. 751, 757 (1992) (arguing federalizing crimes has resulted in an overloading of the federal courts).

44 The "floodgates of litigation" concern is a combination of two problems: (1) subjecting courts to a socially expensive and haltingly burdensome amount of suits based on frivolous or nonmeritorious claims; and (2) subjecting possible defendants to suits not aimed at equitable recovery or compensation but at forcing defendants to settle to avoid expensive litigation costs. By opening the floodgates, there would be an undermining of the court system and a chilling of potentially socially beneficial activities by possible defendants in society.

45 Ultramares Corp. v. Touche, Niven & Co., 174 N.E. 441, 444 (1931). It is worth noting that, in Ultramares, Justice Cardozo specifically distinguished between injuries caused by "physical force" and "the circulation of a thought or the release of the explosive power resident in words." Id. at 445.

46 Take a situation where damages (economic loss or emotional harm) are easily spread (has low transaction costs) and the damages are spread to an indeterminate number of random plaintiffs. It can be argued that it is more efficient to let the damages lie where they fell than to attempt to "harvest" them through the legal system so as to redistribute them, first, to a defendant and thereafter to the members of the defendant's insurance risk pool. This argument need not be viewed as correct; all that matters is that judges perceive this as a poor spreading scenario. Thus as Lord Denning said,

It is not sensible to saddle losses on this scale on to one sole contractor. Very often such losses occur without anyone's fault. A mine may be flooded, or a power failure may occur by mischance as well as by negligence. Where it is only mischance, everyone grumbles but puts up with it. No one dreams of bringing an action for damages. So also when it occurs by negligence. The risk should be borne by the whole community rather than on one pair of shoulders, i.e. on one contractor who may, or may not, be insured against the risk. There is not much logic in this, but still it is the law.

SCM (United Kingdom) Ltd. v. W.J. Whitehall & Son Ltd., 1 Q.B. 137 (1970), available in LEXIS, UK Library, ALLCAS File.

47 Whether a duty of care is owed in any particular instance is a question of law and "is the court's expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Bigbee v. Pac. Telephone and Telegraph Co., 665 P.2d 947, 955 (1983). There are a number of such considerations:

the major ones are the foreseeability of harm to plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

Id.

48 See, e.g., Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1316-24 (9th Cir. 1998); Mayo v. Memminger, 1998 U.S. Dist. LEXIS 13154 (N.D. Cal. 1998); GTE New Media Serv. v. Ameritech Corp., 21 F. Supp. 2d 27 (D.D.C. 1998); Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. Ct. App. 1998).

49 See Jeri Clausing, Administration Seeks Input on Privacy Policy, N.Y. Times, Nov. 6, 1998 (visited Feb. 27, 1999) <http://www.nytimes.eom/library/tech/98/ll/cyber/articles/06privacy.html>; United States Department of Commerce, Electronic Commerce Task Force, Safe Harbor Principles (Feb. 28, 1999) <http://www.ita.doc.gov/ecom/menu.htm>; see also Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193 (1998) (discussing use of private data in cyberspace). See generally European Union Data Protection Directive (visited Feb. 25, 1999) <http://www2.echo.lu/legal/en/dataprot/directiv/directiv.html> (outlining protection requirements with regard to processing and moving an individual's personal information). See, e.g., Craig Bicknell, For Sale: Your Tastes, Interests, Wired News, June 24, 1998, (visited Feb. 25, 1999) <http://www.wired.com/news/print_version/business/story/13212.html> (discussing how companies are using individual tastes and interests to sell products).

50 See John Schwartz, Gore Deserves Internet Credit, Some Say: Online Experts Call Vice President's Efforts 'Instrumental' to Current System, Wash. Post, Mar. 21, 1999, at A4.

51 Broadband access permits several channels of information to be offered through a single medium. See Webopaedia (visited Mar. 22, 1999) <http://www.webopedia.eom/TERM/b/broadband_transmission.html>. Currently, broadband access is being touted by MediaOne as being capable of delivering "Superior Television Entertainment," "High Speed Internet Access" and "Digital Telephone Service" over its cable lines. See MediaOne Products and Services (visited Mar. 28, 1999) <http://www.mediaone.com/products_services/default.htm>.

52 Internet protocol (IP) specifies both how data, to be sent from point A to point B, is to be formatted and how point A and point B are to be assigned addresses. See Webopaedia (visited Mar. 22, 1999) <http://www.webopedia.eom/TERM/I/IP.html>.

53 See generally Maureen O'Rourke, Fencing Cyberspace: Drawing Borders in a Virtual World, 82 Minn. L. Rev. 609, 624-30 (1998) (discussing how current laws should be applied to the Internet).

54 Data warehouses, such as Lexis®-Nexis®, are not exceptions to the rule against charging for content as their markets were established prior to permitting web access. Notwithstanding, some information providers and some media companies are moving to per byte or per slice models. See, e.g., WestDoc (visited Jan. 25, 1999) <http://www.westdoc.com/forms/wdupdate.htm>; GoodNoise (visited Jan. 25, 1999) <http://www.goodnoise.com>.

55 See, e.g., Barnes and Noble (visited Jan. 25, 1999) <http://www.barnesandnoble.com>.

56 See, e.g., Music Boulevard (visited Jan. 25, 1999) <http://www.musicblvd.com>; Amazon.com (visited Jan. 25, 1999) <http://www.amazon.com>.

57 See Jonathan Weber, Is It What You Sell or How That Matters More?, L.A. Times, July 28, 1997, at Dl.

58 See, e.g., MSNBC (visited Jan. 25, 1999) <http://www.msnbc.com>; see also Lisa Napoli, Magazine Publishers Search for Place Online, N.Y. Times, Oct. 30, 1998 (visited Feb. 19, 1999) <http://www.nytimes.com/library/tech/98/10/cyber/articles/30magazine.html>.

59 See, e.g., BMG Music Service (visited Feb. 16, 1999) <http://www.bmgmusicservice.com>; see also Stephanie Wilkinson, BMG Music Site is a Hit, Pc Week Online, Oct. 4, 1998, (visited Feb. 16, 1999)<http://www.zdnet.com/pcweek/stories/printme/0,4235,357087,00.html>.

60 See generally Bob Tedeschi, Caught in a Web of 'Sticky' Services, N.Y. Times, Oct. 20, 1998 (visited Mar. 28, 1999) <http://www.nytimes.com/library/tech/98/10/cyber/articIes/20commerce.html> (discussing the efforts that companies make to retain web surfers).

61 See id.

62 See, e.g., Rajiv Chandraekan, Today's Hot Web Concept is 'Portals', Wash. Post, Oct. 11, 1998, at HOI (visited Feb. 23, 1999) <http://www.washingtonpost.com/wp-srv/washtech/daily/oct98/portalsl01198.htm>.

63 See, e.g., Yahoo! (visited Jan. 25, 1999) <http://www.yahoo.com>.

64 See, e.g., Hotmail (visited Feb. 25, 1999) <http://www.hotmail.com>.

65 Third-party advertising typically appears as a banner on a portal site. These advertisements to use the latest euphemism are called sponsored links. For a review of possible advertising models, see Netmarketing, Business-to-Business Websites Top 200 (visited Feb. 25, 1999) <http://www.netb2b.com/nm200> and Adresource (visited Feb. 25, 1999) <http://www.adresource.com/index.html>. Third parties are extremely interested in learning how effective these sponsored links are so they can justify the expense of them. See Craig Bicknell, Making Ads Hit Their Mark, Wired News, Oct. 1998, (visited Feb. 25, 1999) <http://www.wired.com/news/print_version/business/story/15707.html> (discussing how Internet sites can track users for advertising purposes).

66 See, e.g., iVillage (visited Feb. 26, 1999) <http://www.ivillage.com> (focusing on women's issues).

67 See, e.g., Counsel Connect (visited Feb. 26, 1999) <http://www.counsel.com>.

68 See, e.g., Physicians' Online® Network (visited Feb. 26, 1999) <http://www.po.com>.

69 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/Health/Medical_Equipment>.

70 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/Health/Medical_Supplies>.

71 See Yahoo! (visited Feb. 26, 1999) <http://www.yahoo.com/Health/Medicine>.

72 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/Health/Hospitals_and_Medical_Centers>.

73 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/FinanciaI_Services/Insurance/Health/Managed_Care_Providers>.

74 For a listing of the web addresses of the leading drug manufacturers, see Pharmaceutical Companies on the World Wide Web (visited Feb. 26, 1999) <http://members.aol.com/pharminf/ph_listl.html>.

75 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/Health/Pharmaceuticals>.

76 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Health/Diseases_and_Conditions>.

77 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Health/Pharmacy/Drugs_and_Medications/Specific_Drugs_and_Medications>.

78 See Yahoo! (visited Feb. 26, 1999) <http://dir.yahoo.com/Health/Pharmacy/Drugs_and_Medications/Specific_Drugs_and_Medications/ViagraSildenafil>.

79 See Viagra (visited Feb. 26, 1999) <http://www.viagra.com>.

80 See Viagra Resource Site (visited Feb. 26, 1999) <http://www.globalite.com/viagra.html>.

81 See Viagra Talk (visited Jan. 16, 1999) <http://www.bigv.com>.

82 See, e.g., Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 Ga. L. Rev. 419, 509 (1997) (discussing developments in enterprise liability); Clark C. Havinghurst, Making Health Plans Accountable for the Quality of Care, 31 Ga. L. Rev. 587, 647 (1997) (same); William M. Sage & James M. Jorling, A World That Won't Stand Still: Enterprise Liability By Private Contract, 43 Depaul L. Rev. 1007, 1043 (1994) (same); William M. Sage et al., Enterprise Liability For Medical Malpractice and Health Care Quality Improvement, 20 Am. J.L. & Med. 1, 28 (1994) (same); see also Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the Evolution of the American Health Care System, 108 Harv. L. Rev. 381 (1994) (discussing the history of enterprise liability).

83 See, e.g., Grijalva v. Shalala, 152 F.3d 1115, 1117 (9th Cir. 1998) (holding that a Health Maintenance Organization's (HMO) denial of medical services created a federal cause of action); Wash. Physicians Serv. v. Gregoire, 147 F.3d 1039, 1045-46 (9th Cir. 1998) (holding that The Employee Retirement Income Security Act (ERISA) does not preempt Washington's Alternative Provider Statute, which requires HMOs to cover several alternative medical treatment options); Andrews-Clarke v. Travelers Ins. Co., 984 F. Supp. 49, 54-55 (D. Mass. 1997) (holding that the insurance beneficiaries' claims were preempted by ERISA, which does not authorize recovery for common law wrongful death or personal injury caused by an improper refusal to authorize treatment); Robert Pear, Hands Tied, Judges Rule Law That Limits H.M. O. Liability, N.Y. Times, July 11, 1998, at A1.

84 See Tex. Civ. Prac. & Rem. Code §§ 88.001-.003 (West 1997); D.C. Code Ann. § 35-4526 (1998). See generally Carol Marie Cropper, In Texas, a Laboratory Test on the Effects of Suing H.M.O.s, N.Y. Times, Sept. 13, 1998, at C3 (discussing the numbers of lawsuits filed under a new Texas law that allows suing HMOs for malpractice and discussing potential ERISA defenses); David Schultz & Tracey Galinson, Suits Against Managed Care Providers May Elude ERISA, Nat'l L.J., July 6, 1998, at B9, available in WL 7/6/98 Nat'l L.J. B9, (col. 2) (discussing ERISA's preemptive effects on medical malpractice lawsuits for wrongful denial of benefits).

85 See Moscovitch v. Physicians Health Services, 24 F. Supp. 2d 74, 80 (D. Conn 1998) (holding that ERISA did not completely preempt HMO participant's claims against the medical plan administrator); see also HMOs Can Be Sued in Connecticut, NAT'L L.J., Nov. 9, 1998, at A8, available in WL 11/9/98 Nat'l L.J. A8, (col. 1) (discussing Moscovitch and noting that an HMO may be liable for quality of care rather than denial of benefits).

86 See Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229 (Pa. Super. Ct. 1988) (holding that because HMO advertising caused the consumer to reasonably conclude that the physicians were HMO employees and caused consumers to select the HMO rather than the individual physician, the HMO could be held liable for the physician's negligence).

87 See Catholic Health Care West (visited Feb. 2, 1999) <http://www.chw.edu>.

88 See Kaiser Permanente Welcome (visited Feb. 2, 1999) <http://www.scl.ncal.kaiperm.org>.

89 See Welcome to Allina Health System (visited Jan. 26, 1999) <http://www.allina.com>. Cf. Community Hospital of Los Gatos (visited Jan. 26, 1999) <http://www.tenethealth.com/LosGatos> (referring to "our physicians" but only providing a physician referral service).

90 See Oxford Health Plans (visited Feb. 2, 1999) <http://www.oxhp.com>.

91 For a discussion of both vicarious and corporate liability for Managed Care Organizations (MCOs) and hospitals, see Barry R. Furrow et al., Health Law 289-331 (Hornbook Series, West 1995).

92 See id. at 297-99, 301-05 (discussing corporate duties to properly select and retain medical staff and maintain premises).

93 Core medical services can be defined as those services that compose the basic services offered by a hospital such as obstetrics, cardiology and radiology. See Cheryl Clark, Fallbrook Hospital Deal Spurs Recall Effort, San Diego Union-Tribune, Sept. 9, 1997, at B4.

94 For a discussion of corporate negligence and a hospital's duty to protect third parties, such as nonpatients, see Pedroza v. Bryant, 677 P.2d 166 (Wash. 1994). In Pedroza, the court refused to impose corporate liability on a hospital that granted hospital privileges to a nonemployee physician who allegedly harmed a patient in his private office, off the hospital premises. See id. at 172.

95 See Darling v. Charleston Community Mem'l Hosp., 211 N.E.2d 253 (111. 1965) (representing the emergence of corporate negligence and the duty to protect patients from medical staff negligence).

96 See Schlotfeldt v. Charter Hosp., 910 P.2d 271 (Nev. 1996) (representing the general rule in vicarious liability doctrine that a doctor-hospital agency relationship must exist for the doctor's acts to attribute liability to the hospital, and that the existence of the relationship, even an ostensible agency relationship, is a question of fact for a jury); Barry R. Furrow et al., Health Law: Cases, Materials and Problems 240 (3d ed. West 1997).

97 See Berel v. HCA Health Serv. of Texas, Inc., 881 S.W.2d 21, 21 (Tex. Ct. App. 1994) (stating the control test for vicarious corporate liability as "It is the right of control, not actual control, that gives rise to a duty to see that the independent contractor performs his work in a safe manner").

98 See Sword v. NKC Hosp., Inc., 661 N.E.2d 10 (Ind. Ct. App. 1996) (exemplifying the ostensible agency test for vicarious corporate liability, but also discussing agency by estoppel as predicated on the Restatement (Second) of Agency § 267).

99 See Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (demonstrating the nondelegable duty rule from agency law as applied to corporate negligence cases); Sword, 661 N.E.2d at 10; Francisco v. Hartford Gynecological Ctr., Inc., No. CV92-0513841 S, 1994 Conn. Super. LEXIS 521 (Mar. 1, 1994); Houghland v. Grant, 891 P.2d 563 (1995).

100 See Jackson, 743 P.2d 1376; Beeck v. Tucson General Hosp., 500 P.2d 1153 (Ariz. 1972) (discussing the inherent function test for vicarious corporate liability and the doctrine of nondelegable duty).

101481 N.W.2d 277 (Wis. 1992).

102 See id. at 278.

103 See supra note 99 (cases representing apparent agency as a basis for institutional liability).

104 Kashishian, 481 N.W.2d at 282 (footnote omitted).

105 661 N.E.2d 10 (Ind. Ct. App. 1996).

106 See id. at 12.

107 See id.

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered for the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services to the same extent as though the employer were supplying them himself or by his servants.

Restatement (Second) of Torts § 429 (1965).

108 See Sword, 661 N.E.2d 10.

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Restatement (Second) of Agency § 267 (1958).

109 Sword, 661 N.E.2d at 15 (footnote omitted).

110 See id. at 15-16.

111 696 N.E.2d 356 (III. App. 1998).

112 The HMO at issue was an independent practice association (IPA) model, where the HMO contracts with independent medical groups to provide patient services, as opposed to a staff model, where the HMO employs physicians directly to provide services. See id. at 359.

113 See id. at 358.

114 See id. at 362.

115 See id. at 359, 363. See also Sorrells v. Egleston, 474 S.E.2d 60, 61-63 (Ga. Ct. App. 1998) (reversing the trial court's grant of summary judgment for the hospital because there was a genuine question of material fact regarding whether the informed consent forms explicitly notified the parents that the physicians were not hospital employees); Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788, 794-96 (111. 1993) (reversing summary judgment for the hospital because a genuine issue of material fact existed as to whether the physician was an apparent agent of the hospital, where the hospital's treatment consent form stated that he would be treated "by physicians and employees of the hospital"); Gragg v. Calandra, 696 N.E.2d 1282, 1287-88 (111. App. 1998) (holding that a hospital can be held liable for the negligent acts of a physician providing care at the hospital, even when an agent commits an intentional tort while furthering the business of the principal); Dahan v. UHS of Bethesda, Inc., 692 N.E.2d 1303, 1307 (III. App. 1998) (finding the hospital liable for the acts of its agent physician where the patient did not know the physician was an independent contractor).

116 See, e.g., Berel v. HCA Health Services of Texas, Inc., 881 S.W.2d 21 (Tex. Ct. App. 1994) (holding that a hospital's ability to override an independent physician's orders through utilization review procedures raises a genuine issue of material fact regarding control). But cf. Chase v. Independent Practice Ass'n, Inc., 583 N.E.2d 251 (Mass. App. Ct. 1991) (holding that the IPA's utilization review procedures and cost-containment clauses did not raise a genuine issue of fact regarding control because the IPA did not have the right to hire or fire independent physicians, nor could the IPA alter the physician's salaries, work schedules, or terms of employment).

117 Although no court has explicitly adopted enterprise liability for health care providers, some courts have done so implicitly. See, e.g., Alden v. Providence Hosp., 382 F.2d 163, 166 (D.C. Cir. 1967) (noting that even though an independent physician may be in charge of the patient, the hospital remains liable for the negligent acts of its employee physicians, nurses, interns, attendants or laboratory staff). But see, e.g., Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (rejecting enterprise liability, and instead adopting apparent authority as the test for vicarious liability).

118 Website advertising is less costly to produce than traditional media. See O'Rourke, supra note 53, at 629.

119 See Steven W. Kopp & Mary Jane Sheffet, The Effect of Direct-to-Consumer Advertising of Prescription Drugs on Retail Gross Margins: Empirical Evidence and Public Policy Implications, 16 J. Pub. Pol'Y & Marketing 270 (1997), available in LEXIS, Market Library, JPP&M file; The Name Game, Med. Ad. News, Aug. 1, 1998, at 3, available in 1998 WL 10479236; New Consumer Campaigns, Med. Ad. News, Aug. 1, 1998, at 12, available in 1998 WL 10479241; The Preapproval Edge; Pharmaceutical Firms Turn to Preapproval Advertising to Gain Market Edge, Med. Ad. News, May 1, 1998, at 1, available in 1998 WL 10478970; Warren R. Ross, How DTC Broke Advertising's Berlin Wall; Direct-to-Consumer Advertising of Pharmaceutical Products, Med. Marketing & Media, June 1998, at 76; see also FDA Puts Stop to Schering-Plough's TV Antihistamine Ads, Med. Indus. Today, Aug. 25, 1997, available in LEXIS, News Library, MEDTDY file the Food and Drug Administration (FDA) has expressed its concerns with DTC prescription drug advertising because the Schering-Plough Corp. did not properly explain the side effects of its drug); Lilly's Drug Ad Guidelines Praised by State Medical Group, Med. Indus. Today, Mar. 30, 1998, available in LEXIS, News Library, MEDTDY file (Eli Lilly & Co. became one of the first pharmaceutical companies to develop guidelines to regulate how it advertises its prescription drugs).

120 See Direct-to-Consumer Promotion, 61 Fed. Reg. 24,314 (1996); Draft Guidance for Industry; Consumer-Directed Broadcast Advertisements; Availability, 62 Fed. Reg. 43,171 (1997). For the FDA's own summary, see the PowerPoint slide show (visited Feb. 2, 1999) <http://www.fda.gov/cder/ddmac/DIAANNUAL.DTC.698.PPT>.

121 See generally Milton Liebman, FDA Takes the Mystery Out of TV Ads, Med. Marketing & Media, Sept. 1997, at 34, 34 (noting that the FDA issued guidelines setting out a practical approach for advertising prescription drugs, requiring a statement disclosing all major risks associated with the drug); Marlene K. Tandy, Regulatory Affairs Perspective; FDA Attempt To Regulate Public Comments Carried On The Internet Has Certain Limits; Commercial Speech On Devices Is OK, Biomedical Market Newsl., Jan. 25, 1997, available in LEXIS, Market Library, IACNWS File (arguing that the FDA should be extraordinarily cautious before regulating medical device promotion and advertising because free speech concerns and suggesting instead that the FDA remain within the boundaries of the statutory authority it has pursuant to the federal Food, Drug & Cosmetic Act); Tamar Nordenberg, Direct To You: TV Drug Ads That Make Sense; Includes Related Articles on Pharmaceutical Products Advertising on the Internet and Ad Regulations, FDA Consumer, Jan. 11, 1998, at 7, 7 (explaining that DTC advertising does have beneficial purposes, however, it may mislead consumers because they do not provide consumers with a complete picture of the drug).

122 See generally Peter S. Reichertz, Understanding Government Regulation of the Marketing and Advertising of Medical Devices, Drugs, and Biologies: The Challenges of the Internet, 52 Food & Drug L.J. 303 (1997) (reviewing FDA progress in determining how pharmaceutical companies can market medical devices, drugs and biologies on the Internet); Marc J. Scheineson, Legal Overview of Likely FDA Regulation of Internet Promotion, 51 Food & Drug L.J. 697 (1996) (considering Fda and Federal Trade Commission (FTC) regulation of Internet-based advertising, including use of interactive graphics to manipulate and convey drug information); David W. Opderbeck, How Should FDA Regulate Prescription Drug Promotion on the Internet?, 53 Food & Drug L.J. 47 (1998) (addressing the history, culture, technology and popular uses of the Internet, using model regulations presented at a 1996 FDA conference on Internet content). See also Promotion of FDA-Regulated Medical Products on the Internet; Notice of Public Meeting, 61 Fed. Reg. 48,707 (1996) (announcing an FDA sponsored public meeting to discuss issues related to the promotion of FDA-regulated medical products on the Internet with the purpose of guiding the FDA in policy decisions on the promotion of drugs on the Internet); Unified Agenda of Federal Regulatory and Deregulatory Actions 63 Fed. Reg. 61,680 (1998) (requiring the semiannual publication of an agenda that summarizes current rulemakings of the Department of Health and Human Services, including the emerging policy mandating more effective regulation of drugs and medical products).

123 See, e.g., Michael C. Allen, Comment: Medicine Goes Madison Avenue: An Evaluation of the Effect of Direct-To-Consumer Pharmaceutical Advertising on the Learned Intermediary Doctrine, 20 Campbell L. Rev. 113 (1997) (examining and evaluating the learned intermediary doctrine with regard to DTC advertising, focusing on an analysis of products liability principles); Teresa M. Schwartz, Consumer-Directed Prescription Drug Advertising and the Learned Intermediary Rule, 46 Food Drug Cosm. L.J. 829 (1991) (concluding that courts will be unwilling to recognize a new liability-expanding rule pertaining to increased advertising of prescription drugs to consumers); Lars Noah, Advertising Prescription Drugs to Consumers: Assessing the Regulatory and Liability Issues, 32 Ga. L. Rev. 141 (1997) (analyzing regulation and liability consequences of drug companies' media campaigns to sell more products). See also Lars Noah, Death of a Salesman: To What Extent Can the FDA Regulate the Promotional Statements of Pharmaceutical Sales Representatives?, 47 Food & Drug L.J. 309, 326, 334 (1992) (discussing FDA authority to control actions of pharmaceutical company "detail men").

124 See Rita Rubin, On-line Viagra worries medical boards, USA TODAY, Jan. 21, 1999, at Dl (stating that as increasing numbers of websites offer "on-line consultations" for Viagra, medical licensing officials are studying ways to stop them).

125 See Frye v. Medicare-Glaser Corp., 605 N.E.2d 557 (111. 1992) (holding that a pharmacist and pharmacy were not negligent in warning of a drug's dangerous side effects).

126 See, e.g., CyberPharmacy, (visited Feb. 27, 1999) <http://www.cyberpharmacy.com>; Drugstore.com (visited Feb. 27, 1999) <http://www.drugstore.com/index.html>. See generally Matt Richtel, A Prescription for Success, N.Y. Times, Jan. 24, 1999, at BIO (discussing the founders of Drugstore.com); Bob Tedeschi, Want to Be an Online Drugstore? Take a Number, N.Y. Times on the Web, Feb. 2, 1999, (visited Mar. 28, 1999) <http://www.nytimes.com/library/tech/99/02/cyber/commerce/02commerce.html> (showing the increasing popularity of online drugstore offerings); Net Pharmacies Raise Abuse Fears, Dallas Morning News, Nov. 26, 1998, at 3C.

127 See Reichertz, supra note 122, at 304.

128 See Nordenberg, supra note 121, at 7. 129 See id.

130 See Noah, Advertising Prescription Drugs to Consumers, supra note 123, at 150.

131 See id. at 153-54.

132 See Allen, supra note 123, at 118-19.

133 See id. at 120.

134 See, e.g., Stevens v. Parke Davis & Co., 507 P.2d 653 (Cal. 1973) (finding a pharmaceutical company liable for overpromotion of a drug).

135 See generally Allen, supra note 123 (discussing the effects of DTC pharmaceutical advertising on the learned intermediary doctrine).

136 See Yahoo! (visited Jan. 26, 1999) <http://dir.yahoo.com/Business_and_Economy/Companies/Health>.

137 See Pharmaceutical Companies on the World Wide Web (visited Feb. 26, 1999) <http://members.aol.com/pharminf/ph_listl.http://www.merck.com/html>.

138 See generally Merck (visited Feb. 26, 1999) <http://www.merck.com> (containing aspects of corporate, vertical portal and product-related advertising models).

139 See supra note 137.

140 See Exploring Your Health Online (visited Feb. 26, 1999) <http://www.pfizer.com/kpw/explore>.

141 See id.

142 For example, from the Exploring Your Health Online site, if you choose the Viagra hyperlink, you will be presented with the disclaimer. See External Link Page (visited Feb. 28, 1999) <http://www.pfizer.com/kpw/explore/cgi-bin/xlink/nph-xlink.cgi?link=http://www.pfizer.com>.

143 See Welcome to Schering Plough! (visited Feb. 24, 1999) <http://www.sch-pIough.com>.

144 See Health Care Homepage (visited Feb. 24, 1999) <http://www.myhealth.com>.

145 See Welcome to Claritin.Com (visited Feb. 24, 1999) <http://www.allergy-relief.com>; Welcome to the Skin Cancer Zone! (visited Feb. 24, 1999) <http://www.skhttp://www.skin-cancer.com/index.htmin-cancer.com/index.htm>. From Welcome to the Skin Cancer Zone!, one can access the consumer-oriented page, see Skin Cancer-Consumer Zone (visited Feb. 24, 1999) <http://www.skhttp://www.skin-cancer.com/consumer/con_indx.htmin-cancer.com/consumer/con_indx.htm>.

146 See Skin Cancer—Guide to Sun Safety (visited Feb. 24, 1999) <http://www.skhttp://www.skin-cancer.com/consumer/sun_sfty/guide/guide.htmin-cancer.com/consumer/sun_sfty/guide/guide.htm>.

147 See Welcome to Claritin.Com (visited Jan. 26, 1999) <http://www.alhttp://www.allergy-relief.com/learn/index.htmlergy-relief.com/learn/index.htm>.

148 See Welcome to Claritin.Com (visited Jan. 26, 1999) <http://www.alhttp://www.allergy-relief.com/info/index.htmlergy-relief.com/info/index.htm>.

149 See supra note 144 and accompanying text.

150 See McKee v. American Home Prods. Corp., 782 P.2d 1045 (1989), stating:

In 1980, the FDA adopted regulations requiring patient package inserts (PPI) directed to the consumer. These were information leaflets, in lay language, to be produced by manufacturers and distributed by pharmacists at the time a prescription was filled. 40 Fed. Reg. 60,754 (1980). This program was rescinded, however, in 1982. 47 Fed. Reg. 39,147 (1982). Patient inserts are still required for oral contraceptives and several other drugs…. 782P.2dat 1055.

151 See Welcome to Claritin.Com (visited Feb. 25, 1999) <http://www.alhttp://www.allergy-/?relief.com/pi/index.htmlergy-relief.com/pi/index.htm>. Patient inserts are also available for the medication Viagra, see Viagra (visited Feb. 26, 1999) <http://www.vihttp://www.viagra.com/hcp/pro_pack_insert.htmagra.com/hcp/pro_pack_insert.htm>.

152 See Celebrex (visited Jan. 26, 1999) <http://www.cehttp://www.celebrex.com/pi.htmlebrex.com/pi.htm> (manufactured by Pfizer Inc.).

153 See Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. 1974); Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2nd Cir. 1969); McKee v. Moore, 648 P.2d 21, 23 (Okla. 1982); Terhune v. A.H. Robins Co., 577 P.2d 975, 977 (Wash. 1978).

154 A different rule pertains to over-the-counter products. See Torsiello v. Whitehall Lab., 398 A.2d 132, 136 (N.J. Super. Ct. App. Div. 1979).

155 There may be other variants if the information proves lacking. See Washington State Physicians Insurance Exchange & Assoc, v. Fisons Corp., 858 P.2d 1054 (Wash. 1993) (describing a case where a physician brought an action against a pharmaceutical manufacturer for allegedly failing to warn him about a possible adverse reaction to the drug by his patient).

156 569 N.E.2d 875 (Ohio 1991).

157 See id. at 878. Later the court also noted: "The learned intermediary doctrine achieves a proper allocation of responsibility since not all patients are alike and it is the physician who best knows the patient." Id. "[CJhoice … [of the learned intermediary] is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative." Reyes v. Wyeth Labs, 498 F.2d 1264, 1276 (5th Cir. 1974).

158 Tracy, 569 N.E.2d at 878.

159 Id.

160 See id.

161 See Brazzell v. United States, 788 F.2d 1352, 1357 (8th Cir. 1986). See also Mazur v. Merck & Co., Inc., 964 F.2d 1348, 1355 (3d Cir. 1992). The mass immunization exception is better thought of as one context where a prescription drug manufacturer is obligated to warn users directly of the facts that make its product dangerous. See id. at 1355. That is, it restores the prescription drug manufacturer's duty to warn users directly, which is satisfied indirectly where the prescription drug manufacturer provides an adequate warning to a learned intermediary, because the rationale supporting the learned intermediary rule buckles where prescription drugs are dispensed without an individualized medical balancing of the risks and benefits to the user. See id.

162 See West v. G.D. Searle & Co., 879 S.W.2d 412,414 (Ark. 1994), holding that:

The applicable Food and Drug Administration regulation requires a manufacturer to ship a leaflet or pamphlet to the dispenser which fully informs the patient of the benefits and risks involved in the use of oral contraceptives … .The duty imposed on Searle was to include this information, using the language required by the Food and Drug Administration, when it shipped the product to the dispenser.

Id. (emphasis in original)

163 Cf. Restatement (Third) of Torts § 6 cmt. e (1998) (stating the rationale for this exception is that "warnings should be given directly to patients when government regulations so require.").

164 See MacDonald v. Ortho Pharm. Corp., 475 N.E.2d 65 (Mass. 1985). In MacDonald, the court held that: (1) a manufacturer of oral contraceptives owes direct duty to a user to warn of dangers inherent in use of contraceptives; and (2) a manufacturer's compliance with FDA guidelines does not necessarily shield it from liability for failing to provide adequate warnings. Id. at 65-66.

165 See Hill v. Searle Labs., 884 F.2d 1064 (8th Cir. 1989); Humes v. Clinton, 792 P.2d 1032 (Kan. 1990); see also MacDonald, 475 N.E.2d at 69 (finding that "the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use 'the pill'"); Odgers v. Ortho Pharm. Corp., 609 F. Supp 867, 878 (E.D. Mich. 1985) (finding that "a patient does not rely on the physician to nearly the same degree when it comes to choosing a method of contraception as in a decision regarding a therapeutic drug").

166 475 N.E.2d 65.

167 Id. at 70.

168 See Restatement (Third) of Torts, § 6 cmt. e.

169 See Mazur v. Merck & Co., 964 F.2d 1348, 1356 (3d Cir. 1992).

170 964 F.2d 1348 (3d Cir. 1992).

171 Id. at 1363.

172 See In re Norplant Contraceptive Prods. Liab. Litig., 955 F. Supp 700 (E.D. Tex. 1997) (arguing unsuccessfully that direct web marketing may negate the learned intermediary doctrine) aff'd, 165 F.3d 374 (5th Cir. 1999) (holding that Texas' learned intermediary doctrine precludes manufacturer liability).

173569 N.E.2d 875 (Ohio 1991).

174 See id. at 879; see also Lars Noah, Death of a Salesman, supra note 123, at 310-12 (noting that information provided by pharmaceutical sales personnel "has the most significant impact on doctors' prescribing habits, outweighing the effects of post-graduate education, advertising, journal articles and direct mailings").

175 Tracy, 569 N.E.2d at 880 (emphasis added).

176 884 F.2d 1064 (8th Cir. 1989).

177 Id. at 1070-71 (footnotes and citation omitted); cf. In re Norplant Contraceptive Prods. Liab. Litig., 165 F.3d at 379 (finding that physicians play a significant role in prescribing Norplant and in educating patients about its use, therefore the learned intermediary doctrine is still applicable); see also In re Norplant Contraceptive Prods. Liab. Litig., 955 F. Supp 700 (containing arguments from earlier proceedings where the plaintiffs' argument that DTC promotion undercuts the rationale of the learned intermediary doctrine and estops defendants from relying on the intermediary as an independent cause and from asserting such a defense was not considered on the merits). But see Humes v. Clinton, 792 P.2d 1032 (1990) (holding that the learned intermediary doctrine relieves manufacturer of intrauterine device (IUD) of duty to warn patients of risks involved).

178 Restatement (Third) of Torts, § 6(d).

179 Id. (emphasis added).

180 Torsiello v. Whitehall Labs., 398 A.2d 132, 139-40 (N.J. 1979).

181 Of course, today's websites go far beyond any such transliteration. The technological aspects, the interaction, targeting, personalization, etc., combined with the growing "stickiness" of such endeavors, suggests that this is marketing of an altogether different quality, intensity, targeting and penetration.

182 There are already reports of serious problems with online advice. See, e.g.. Let the Surfer Beware, Newsweek, Nov. 16, 1998, at 90; cf. Cyberdoctor Gets High Marks For His Pediatric Advice On The Internet; Colleague Says Column Is An Asset To Parents And Physicians Alike, ST. Louis Post-Dispatch, Nov. 8, 1998, at C13 (highlighting the story of the highly successful Ask the Webdoctor site that gives concerned parents pediatric health advice and information); see also Diane Jennings, Bitter Pill to Swallow; 'Cybermedicine' Simplicity has Fans but Raises Concerns, Dallas Morning News, Nov. 6, 1998, at 1A (emphasizing both the popularity of cybermedicine, and the problem of patients relying on medical advice from physicians they have never met); Docs Explore whether Online Medicine is Good Medicine, supra note 27.

183 Cyberdocs (visited Mar. 5, 1999) <http://www.cyberdocsxom>. See generally Cybermedicine seen as unhealthy by some; Concerns voiced over diagnosing ills, prescribing medicine on 'Net, Boston Globe, Aug. 6, 1998, at CI (specifically discussing Cyberdocs, its practices and principles).

184 Cyberdocs (visited Mar. 5, 1999) <https://www.cyberdocs.com/sponsorship.htm>.

185 Id. (visited Jan. 25, 1999) <htthttp://dir.yahoo.com/Health/Advicep://www.cyberdocs.com/>.

186 See, e.g., Yahoo! (visited Mar. 5, 1998) <http://dir.yahoo.com/Health/Advice>. 187 See. e.g., Yahoo! (visited Mar. 5, 1998) <http://dir.yahoo.com/Health/Chat>.

188 See, e.g., Yahoo! (visited Mar. 5, 1998) <http://dir.yahoo.com/Health/General_Health>.

189 The web is also alive with physician screening services, advice sites aimed more at the industry, see Physician Profile Services (visited Nov. 8, 1998) <http://dir.yahohttp://dir.yahoo.com/Business_and_Economy/Companies/Health/Providers/Physician_Profile_Serviceso.com/Business_and_Economy/Companies/Health/Providers/Physician_Profile_Services>.

190 (visited Feb. 6, 1999) <http://www.tehttp://www.telemedical.com/Telemedical/library.htmllemedical.com/Telemedical/library.html>.

191 "An extranet is a private network that uses the Internet protocols and the public telecommunication system to securely share part of a business's information or operations with suppliers, vendors, partners, customers, or other businesses." (visited Feb. 6, 1999) <http://www.whttp://www.whatis.com/extranet.htmhatis.com/extranet.htm>.

The Cyberspace Telemedical Office is designed to be used by individuals, families, communities, and healthcare professionals … . Guests are able to store up to 3.0 Megabytes of Their Personal Health Record and browse a growing list of healthcare information and products. However, paying or sponsored members have access to premium personalized services, publications, and online ordering of products.

Id. (visited Feb. 6, 1999) <http://www.tehttp://www.telemedical.com/indexwb.htmlemedical.com/indexwb.htm>.

193 :3 Go Ask Alice! (visited Feb. 6, 1999) <http://www.ghttp://www.goaskalice.columbia.edu/about.htmloaskalice.columbia.edu/about.html>.

194 See id.

195 Emedicine (visited Feb. 6, 1999) <http://www.ehttp://www.emedicine.com/index.htmlmedicine.com/index.html>.

196 See id.

197 Optum (visited Feb. 6, 1999) <http://www.ohttp://www.optumcare.com/index.htmIptumcare.com/index.htmI>.

198 Optum (visited Feb. 6, 1999) <http://www.ohttp://www.optumcare.com/about/overview/index.htmlptumcare.com/about/overview/index.html>.

199 See Doctor's Guide (visited Mar. 17, 1999) <http://www.dhttp://www.docguide.com/ocguide.com>. 200 See, e.g., the Condom Wizard at <http://www.chttp://www.condomania.com/cgi-bin/SoftCart.exe/catalog/wizard/cwiz.shtml?L+condomania+aaaa5137ondomania.com/cgi-bin/SoftCart.exe/catalog/wizard/cwiz.shtml?L+condomania+aaaa5137>, part of the Condomania site (visited January 23, 1999) <http://www.cohttp://www.condomania.com/ndomania.com>.

201 See, e.g., Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). A physician recommended specific surgery to a patient, falsely representing that he had performed the same operation on three other patients and that all had had successful results. See id. at 910. In addition, he assured the patient that if the surgery were unsuccessful, the patient should not worry about amputation. See id. Contrary to his statement, the physician had never before personally performed this type of surgery. In reliance on these statements, the patient consented to the surgery, but it proved unsuccessful, ultimately resulting in amputation of the patient's foot. See id. at 909. The court rejected the plaintiffs assertion that the trial court's instructional error led to the jury's rejection of his claim of malpractice based on a lack of informed consent. See id. However, a majority of the court concluded that a claim for negligent misrepresentation was not subsumed by plaintiffs malpractice claim and that the trial court erred in refusing to submit such a claim for jury consideration. See id. at 914; see also Annotation, Medical Malpractice: Liability Based on Misrepresentation of the Nature and Hazards of Treatment, 42 A.L.R.4th 543 (discussing negligent misrepresentation as a theory for relief).

202 See Barden v. HarperCollins Publishers, Inc., 863 F. Supp. 41, 45 (D. Mass. 1994). To recover for intentional fraudulent conduct, the plaintiff must prove that: "the defendant made a false misrepresentation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage." Metropolitan Life Ins. Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir. 1984) (citing Barrett Associates, Inc. v. Aronson, 190 N.E.2d 867, 868 (Mass. 1963).

203 See infra notes 207-31 and accompanying text.

204 See infra notes 239-51 and accompanying text.

205 See generally supra note 47.

206 Roman v. New York, 442 N.Y.S.2d 945 (Sup. Ct. 1981).

207 See id. at 948.

208 Id. at 947-48.

209 Bailey v. Huggins Diagnostic & Rehabilitation Center, Inc., 952 P.2d 768 (Colo. App. 1997), reh 'g denied (Colo. App. July 31, 1997), cert, denied (Colo. Feb. 23, 1998).

210 See id. at 770.

211 See id.

212 Id. at 772.

213 Id. at 773 (citation omitted).

214 Barden v. HarperCollins Publishers, Inc., 863 F. Supp. 41 (D. Mass. 1994).

215 See id. at 42.

216 See id.

217 See id.

218 See id.

219 See id. A similar fate befell the plaintiffs cause of action based on state deceptive trade practices legislation.

220 Id. at 45.

221 Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991).

222 See id. at 1034.

223 See id.

224 Id. at 1037; see also Demuth Dev. Corp. v Merck & Co., 432 F. Supp. 990 (E.D.N.Y. 1977) (concerning an encyclopedia of chemicals and drugs).

225 Jones v. J.B. Lippincott Co., 694 F. Supp. 1216 (D. Md. 1988).

226 See id. at 1216.

227 Id. at 1216-17 (citations omitted).

228 See infra notes 296-303 and accompanying text.

229 See supra notes 38-39 and accompanying text.

230 Cookies are bits of information about users, stored on their computers' hard drives by websites, that enable those websites to remember users and their preferences. See PC Webopedia (visited Apr. 2, 1999) <http://www.webopedia.com/TERM/c/cookie.html>.

231

Personalization (sometimes called customization) generally refers to making a Web site more responsive to the unique and individual needs of each user.

This can be accomplished in a number of ways, some of which require the user's active involvement (typically through filling out a form or following a decision-tree set of questions). Other approaches operate behind the scenes, without relying on use input—by using cookies, for example, or by looking at an IP address and serving up content based on the user's browser.

Web Business—Personalizing your Web site—What is personalization? (visited May 19, 1999) <http://www.builder.com/business/personal/ssO1.html>.

232 Several fascinating issues beyond the scope of this Article arise. See Cardozo v. True, 342 So.2d 1053, 1056 (Fla. Dist. Ct. App. 1977) (distinguishing the tangible portion of the book, the binding and printing, characterized a "good," from the thoughts and ideas contained therein).

233 See generally Nicolas P. Terry, Collapsing Torts, 25 Conn. L. Rev. 717, 725-28 (1993) (discussing the strict liability allocation model).

234 See generally Charles Walter & Thomas F. Marsteller, Liability for the Dissemination of Defective Information, 30 IEEE Transactions on Prof'l Comm., Sept. 1987, at 164 (discussing the requisite factors to prove a products liability claim). See also Pamela Samuelson, Liability for Defective Electronic Information, 36 Comm. ACM, Jan. 1993, at 21 (discussing the liability of software developers if their software injures a user).

235

Further, appellant's rationale—that appellees are liable because the State (a third party) relied on the publications to determine emission laws—is flawed. This reasoning is faulty because any duty owed would not be to appellant, but to those who actually relied on the work—in this case, the State.

Sinai v. Mitchell Books, No. 92-15442, 1993 WL 220260, at *1 (9th Cir. June 23, 1993) (Unpublished Disposition).

See Yanase v. Automobile Club of S. Cal., 212 Cal. App. 3d 468, 468 (Cal. Ct. App. 1989) (holding publisher of a tour guide not liable to the plaintiff killed in the parking lot of motel listed in guide); Walters v. Seventeen Magazine, 195 Cal. App. 3d 1119, 119 (Cal. Ct. App. 1987) (holding magazine not liable to the plaintiff who suffered from toxic shock syndrome from advertised tampon); Pittman v. Dow Jones & Co., 662 F. Supp. 921, 922 (E.D. La. 1987) (holding the newspaper not liable for printing a fraudulent advertisement); Lewin v. McCreight, 655 F. Supp. 282, 282 (E.D. Mich. 1987) (holding the defendant not liable because defendant merely printed, not created, a book); Demuth Dev. Corp. v. Merck & Co., Inc., 432 F. Supp. 990, 990 (E.D.N.Y. 1977) (granting summary judgment to defendant who published a chemical encyclopedia which allegedly contained a misstatement of a chemical's toxicity); Way v. Boy Scouts of America, 856 S.w!2d 230, 237 (Tex. Ct. App. 1993) (holding the magazine publisher not liable for the accidental shooting death of a 12-year old boy after he had read a shooting sports supplement in the defendant's magazine). See also Garcia v. Kusan, Inc., 655 N.E.2d 1290, 1290 (Mass. App. Ct. 1995) (holding the producer of a floor hockey game not liable to the plaintiff who was injured when struck in the eye by hockey stick during a gym class).

236 833 P.2d 70, 70 (Haw. 1992).

237 See id.

238 See id. at 75 (footnotes omitted) (emphasis added).

239 See Brocklesby v. United States, 767 F.2d 1288 (9th Cir. 1985); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2nd Cir. 1983) (classifying charts as defendant's products); Fluor Corp. v. Jeppesen & Co., 216 Cal. Rptr. 68, 68 (Ct. App. 1985). See also Halstead v. United States, 535 F. Supp. 782, 782 (D. Conn. 1982) (classifying navigational charts as products); Times Mirror Co. v. Sisk, 593 P.2d 924, 924 (Ariz. Ct. App. 1978) (holding that whether a navigational chart was unfit for purposes and whether misrepresentations of the defendant about the chart were proximate causes of the accident were jury questions).

240 563 A.2d 123, 126 (Pa. Super. Ct. 1989).

241 See id. The plaintiffs action was premised on Second Restatement of Torts sections 388 and 390. See id. The Smith court was dismissive of the plaintiffs arguments based on exceptions to the First Amendment and a negligent publication argument. See id. at 125-26.

242 See id. at 126; see also supra note 150 (discussing PPIs).

243 Smith, 563 A.2d at 126.

244 See, e.g., Kercsmar v. Pen Argyl Area Sch. Dist, 1 Pa. D. & C.3d 1 (1976).

245 Smith, 563 A.2d at 127.

246 See Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036 (9th Cir. 1991); Jones v. J.B. Lippincott Co., 694 F. Supp. 1216, 1217 (D. Md. 1988).

247 See Winter, 938 F.2d at 1036 (analogizing an aeronautical chart to a compass).

248 Id. at 1034-35 (citations omitted); accord Birmingham, 833 P.2d at 78.

249 See, e.g., Crocker v. Winthrop Labs, 514 S.W.2d 429, 433 (Tex. 1974) (predicating a drug manufacturer's liability on its misrepresentation that the drug was "free and safe from all dangers of addiction").

250 See, e.g., Sullivan v. O'Connor, 296 N.E.2d 183, 189-90 (Mass. 1973) (holding that, in an action by a professional entertainer against a surgeon for breach of a contract to improve the appearance the plaintiffs nose in two operations, the plaintiff was entitled to recover not only her out-of-pocket expenses, but also for worsening of the appearance of her nose by the surgery and for pain and suffering mental distress involved in a third operation).

251 See id.

252 241 Cal. Rptr. 101 (Ct. App. 1987).

253 Id. at 102. The court distinguished the leading case of Hanberry v. Hearst Corp., 81 Cal. Rptr. 519 (Ct. App. 1969), by noting that unlike Good Housekeeping magazine in Hanberry, the defendant in this case made no endorsement of a product's effectiveness. See Walters, 241 Cal. Rptr. at 102; see also McCollum v. Friendly Hills Travel Ctr., 217 Cal. Rptr. 919 (Ct. App. 1985) (holding that the defendant did not make any express or implied warranties regarding the safety of water skiing equipment by just telling the plaintiff of the availability of such equipment).

254 Walters, 241 Cal. Rptr. at 102-03.

255 See, e.g.. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 n.4 (1985) (discussing the reduced First Amendment protection that commercial speech receives); see also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978) (finding a lawyer's solicitation of business to be unprotected commercial speech). For health-related cases, see Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770-73 (1976) (protecting a pharmacist's advertisement of drug prices, even though a state statute authorized revocation of licenses of clinical laboratories that advertised); Metpath Inc. v. Myers, 462 F. Supp. 1104, 1110 (N.D. Cal. 1978) (finding a First Amendment violation where a state statute authorized revocation of licenses of clinical laboratories that advertised). See also Missouri Dental Bd. v. Alexander, 628 S.W.2d 646 (Mo. 1982) (issue not reached). For a content-tort liability type case, see Hustler, 814 F.2d 1017 (5th Cir. 1987) cert, denied, the Fifth Circuit apparently viewed a mere "promotional device" as commercial speech in contrast with content disseminated for profit (814 F.2d at 1024) that could still qualify as noncommercial speech.

256 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (alleging that the defendant's advertisements were fraudulent and deceptive); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (alleging that the defendant's publishing of advertisements containing inaccuracies was defamatory); Beauharnais v. Illinois, 343 U.S. 250 (1952) (alleging that the defendant's actions constituted criminal libel); Schneider v. State, 308 U.S. 147 (1939) (alleging that the defendants violated ordinances designed to prevent litter and fraudulent solicitation).

257 See also Waller v. Osbourne, 763 F. Supp. 1144, 1152-53 (M.D. Ga. 1991) (granting summary judgment to the defendants where the plaintiffs failed to demonstrate the existence of a subliminal message, or that the defendant's music incited imminent lawless activity).

258 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); McCollum v. Friendly Hills Travel Ctr., 217 Cal. Rptr. 919 (Ct. App. 1985); Hustler, 814 F.2d 1017; Aim v. Van Nostrand Reinhold Co., 480 N.E.2d 1263(1985).

259 International Products Co. v. Erie R.R. Co., 155 N.E. 662, 664 (1927).

260 For example, Hustler, 814 F.2d 1017, concerned the plaintiffs' 14-year-old decedent who took his own life apparently attempting the practice of autoerotic asphyxia. He had read about the practice in a Hustler Magazine article entitled Orgasm of Death. See Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997), which concerned a book, Hit Man: A Technical Manual for Independent Contractors, which is also available for purchase over the web; see (visited Jan. 29, 1999) <http://www.paladin-press.com/Default.htm>.

261 In Doe v. America Online, Inc., 718 So. 2d 385 (Fla. Ct. App. 1998), the plaintiffs 11-year-old child was engaged by a pornographer who then distributed videotapes of the child engaged in sexual acts. See id. at 386. The pornographer, an America Online (AOL) subscriber, allegedly used AOL chat rooms to advertise and arrange the sale of the pornography. See id. It appears, however, that the materials were not displayed on or transmitted via AOL. The plaintiff sued AOL primarily on the basis that AOL breached an alleged duty to exercise reasonable care to ensure that its service not be used "to market and distribute child pornographic materials." See id. at 386. The Florida court did not reach the merits of the tort claim, dismissing all claims on the basis that AOL was protected by 47 U.S.C. § 230, see id., discussed at text accompanying note 298.

262 But see Kristin B. Keltner, Note, Networked Health Information: Assuring Quality Control on the Internet, 50 Fed. Com. L.J. 417, 424-25 (1998) (noting that government has been protective of network health information consumers).

263 Cf Federation of State Medical Boards of the United States, A Model Act to Regulate the Practice of Medicine Across State Lines: An Introduction and Rationale (visited Mar. 7, 1999) <http://www.fsmb.org/telemed.htm> (noting that government support of telecommunications has risen recently).

264 See, e.g., The Western Governors' Association, Telemedic Action Report (1996) (visited Mar. 5, 1999) <http://www.health.state.nd.us/gov/hotnews/telemed.htm>:

There is significant uncertainty regarding whether malpractice insurance policies cover services provided by telemedicine. Telemedicine networks that cross state lines create additional uncertainties regarding the state where a malpractice lawsuit may be litigated and the law that will be used. Will the lawsuit be heard in the state of the provider, the patient, or in another state covered by the network? Which state's law will govern the case? Choice of venue and choice of law issues can have significant financial implications for the parties to litigation as states differ in the statutory limits placed on the amount of malpractice awards … . Governors should direct their state insurance commissions to review the current policies of the malpractice insurance industry with regards to telemedicine, and to recommend changes that encourage insurers to develop clear and consistent coverage policies.

Id. Note also that malpractice insurance tends to be state-centric, causing major coverage and rate-setting issues when patients' consultations defy real space national and international borders.

265 See Keltner, supra note 262,. at 427-28 (citing encryption programs and disclaimers as protections).

266 About Health on the Net Foundation: Background (visited Mar. 7, 1999) <http://www.hon.ch/Global>.

267 HON Code of Conduct (HON code) for Medical and Health Web Sites: Principles (visited Mar. 7, 1999) <http://www.hon.ch/Conduct.html>.

268 HON Code of Conduct (HON code) for Medical and Health Web Sites: Introduction (visited Mar. 7, 1999) <http://www.hon.ch/HONcode>.

269 See, e.g., The Breast Cancer Resource Guide for Massachusetts (visited Mar. 6, 1999) <http://www.breasted.org>; The Washington Home and Hospice of Washington (visited Mar. 6, 1999) <http://www.washingtonhome.org>. See also The Reynoldsburg, Ohio Lions Club (visited Mar. 6, 1999) <http://www.reynoldsburglions.org> (displaying little or no health or medical advice or links).

270 See Allina Disclaimer (visited Mar. 16, 1999) <http://www.allina.com/disclaimer.html>; Mayoclinic: Online Service Agreement, Agreement (visited Mar. 6, 1999) <http://www.mayohealth.org/mayo/common/htm/disclaim.htm>.

271 Viagra (visited Feb. 7, 1999) <http://www.viagra.com>. Part of the disclaimer published by Allina Health System states:

Any medical or health care advice provided and hosted on the Allina Health Village will only be given by medically trained and qualified professionals unless a clear statement is made that a piece of advice offered is from an otherwise qualified healthcare professional and/or healthcare organization. The information provided on this site is designed to support, not replace, the relationship that exists between a patient/site visitor and his/her existing physician. '

Any use by you of this website or the information contained in the website is at your own risk.

Allina Disclaimer, supra note 270.

272 See, e.g., Glaxo Wellcome, USA (visited Feb. 7, 1999) <http://www.gw-navelbine.com> (discussing the product Navelbine).

273 (visited Mar. 7, 1999) <http://www.imgw.com/copyrite.htm>.

274 Id. The Schering-Plough disclaimer takes a less rigorous approach, providing:

Schering-Plough will use reasonable efforts to include accurate and up-to-date information on this site, but makes no representations or warranties as to its accuracy or completeness. Access to and use of the content is at your own risk, and neither Schering-Plough nor any party involved in creating or delivering this site shall be liable to you for any damage of any kind arising out of your access, use or inability to access or use this site, or for any omissions or errors in its content.

Terms and Conditions (visited Mar. 24, 1999) <http://www.sch-plough.com/terms.html>.

275 See, e.g., Mayo Clinic: Online Service Agreement, supra note 270. This disclaimer ends with hyperlinks that state:

I accept all of the foregoing terms either by clicking here or by any further use of the Service. I do not accent all of the foregoing terms.

Id.

276 Click-wrap is described as consumers on their computers clicking on a box marked "I Agree." See Click-wrap License Agreements (visited Mar. 17, 1999) <http://www.ljx.com/internet/0811clickwrap.html>; see also Law Journal Extra! Law of the Internet (visited Mar. 6, 1999) <http://www.ljx.com/internet/ir_ucc.html> (providing hyperlinks to articles that discuss click-wrap issues such as the enforceability of click-wrap agreements).

277 "Click-through" is defined as the process of a visitor clicking on a web advertisement and going to the advertiser's website. See PC Webopaedia: Click-Through (visited Mar. 17, 1999) <http://www.pcwebopaedia.eom/TERM/c/click_through.html>.

See Hotmail Corp. v. Van$ Money Pie, 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998). CLICK-WRAP agreements are contracts formed entirely over the Internet. A party posts terms on its Website pursuant to which it offers to sell goods or services. To buy these goods, the purchaser is required to indicate his assent to be bound by the terms of the offer by his conduct—typically the act of clicking on a button stating "I agree." Once the purchaser indicates his assent to be bound, the contract is formed on the posted terms, and the sale is consummated. No paper record is created nor is the signature of the purchaser required.

OUTSIDE COUNSEL: Click-Wrap Agreement Held Enforceable (visited Mar. 18, 1999) <http://www.ljx.com/internet/0630click.html>.

279 383 P.2d 441 (Cal. Sup. Ct. 1963).

280 Id. at 447.

281 See, e.g., Madden v. Kaiser Foundation Hosp., 552 P.2d 1178, 1186 (Cal. 1976) (finding that the Tunkl approach did not apply, because the plaintiff enjoyed the opportunity to select from among several medical plans, some not including arbitration provisions).

282 See Smith v Hosp. Auth. of Walker, Dade and Catoosa Counties, 287 S.E.2d 99 (Ga. Ct. App. 1981) (reversing a trial court summary judgment for defendant hospital, claiming that a blood donor's signed release constituted a bar to the plaintiffs suit); Meiman v Rehabilitation Center, Inc., 444 S.W.2d 78 (Ky. Ct. App. 1969) (reversing a trial court's summary judgment for the defendant rehabilitation center, attempting to rely on an exculpatory contract where defendant's care fell below the relevant standard of care); Cudnik v. William Beaumont Hosp., 525 N.W.2d 891 (Mich. Ct. App. 1994) (invalidating an exculpatory agreement, executed by the plaintiffs decedent before receiving radiation therapy at the defendant hospital); Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366 (N.Y. App. Div. 1990) (invalidating exculpatory agreement required as a precondition to treatment, as against the state's interest in the health and welfare of its citizens and the physician-patient relationship).

283 See Vodopest v. MacGregor, 913 P.2d 779 (Wash. 1996). In Vodopest, the plaintiff participated in a hiking trek in Nepal designed to collect breathing data. See id. at 781. Prior to the experiment, the plaintiff signed an injury release form. See id. The trial court found that the director of the University of Washington Human Subjects Review Committee had rejected the form as invalid, because the federal government did not allow exculpatory language in human subjects experimentation. See id. at 781-82. The Washington Supreme Court concluded that "[t]o the extent the preinjury release … attempted] to release the Defendant from negligent conduct during the research on high altitude sickness, it is unenforceable." Id. at 789.

284 It is arguable that the corporate counsel mindset encountered when dealing with web-based information is almost totally informed by the practice of using over-long, excessively elaborate copyright notices when placing any corporate content online.

285 See, e.g., Reno v. A.C.L.U., 521 U.S. 844 (1997) (O'Connor J., concurring and dissenting) (describing efforts to establish zones on the Internet and the constitutional and technological problems that must be overcome to make this effective). See also Lawrence Lessig, The Zones Of Cyberspace, 48 Stan. L. Rev. 1403 (1996) (discussing efforts to establish zones for adult material on the Internet).

286 See Lessig, supra note 285, at 1409.

287 See, e.g., Pfizer External Link Page (visited Mar. 17, 1999) <http://www.pfizer.com/kpw/explore/cgi-bin/xlink/nph-xlink.cgi?link=http://www.healthfinder.gov> (stating "You are now leaving www.pfizer.com/exploringhealth. Links to these outside sites are provided as a resource to the viewer. Pfizer accepts no responsibility for the content of linked sites.").

288 See supra note 18-24 and accompanying text.

289 See supra note 143-48and accompanying text.

290 See Schering-Plough (visited Feb. 7, 1999) <http://www.allergy-relief.com/cgi-bin/proinfo.cgi>.

291 See Glaxo Wellcome Inc., Product Sites (visited Feb. 7, 1999) <http://www.glaxowellcome.com/prodct.htm> (bypassing site frame).

292 See Oxford Employer Authentication Screen (visited Mar. 17, 1999) <http://www.oxhp.com/corporate/auth/logemp.html> (requiring an Oxford identification number and a personal identification number to proceed).

293 See Viagra (visited Mar. 17, 1999) <http://www.viagra.com> (stating "The information provided in this site is intended only for residents of the United States. The products discussed herein may have different product labeling in different countries."); Glaxo Wellcome Inc., Product Sites (visited Mar. 21, 1999) <http://www.glaxowellcome.com/prodct.htm> (stating that the information on this site is intended for U.S. health care professionals and consumers only).

294 See Eli Lilly Products (visited Mar. 17, 1999) <http://www.lilly.com/products/usa> (attempting to route the user to particular sites without any authentication or technological zoning, such as by IP address).

295 Compare Eli Lilly Canada—Health Online (visited Mar. 12, 1999) <http://www.lilly.ca/health-on-line/header.html> (providing generalized disease and health information), with Eli Lilly Products (visited Mar. 12, 1999) <http://www.lilly.com/products/usa/index.html> (providing direct access to drug information). The following information is displayed when a user requests specific drug information:

The following information is intended for use only by customers, patients, and health care professionals in the United States. Countries outside the United States may have regulatory requirements or medical practices which are different than those in the United States and may require reference to different or additional information. Therefore, this information may not be appropriate for use outside the United States.

Are you a resident of the United States or one of its territories, or are you a health care professional practicing your profession in the United States or one of its territories?

YES

Untitled (visited Mar. 18, 1999) <http://www.lilly.com/products/usa>.

296 Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). 47 U.S.C. § 230 was one of the few provisions to survive Reno v. A.C.L.U., 521 U.S. 844 (1997).

297 See Stratton Oakmont, Inc. v. Prodigy Services Co., 24 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995) (finding Prodigy was a publisher of statements about the plaintiff on its computer bulletin board).

298 47 U.S.C.S. § 230(c)(1) (1998).

299 Different issues arise in intellectual property cases. See, e.g., Online Copyright Infringement Liability Limitation Act, 17 U.S.C. § 512 (1998) (limiting liability with regard to internet service providers (ISPs) to material "published" on their sites with copyright law).

300 See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (denying the plaintiffs argument that 47 U.S.C. § 230 left intact liability for interactive computer service providers who possess notice of defamatory material posted through their services); Doe v. America Online, Inc., 718 So. 2d 385 (Fla. Ct. App. 1998) (dismissing the plaintiffs complaint that AOL was liable for not taking appropriate action per AOL's Terms of Service and Rules of the Road when an AOL user lured plaintiffs ten-year-old son into having sex, took photographs and offered the photographs in AOL chat rooms).

301 Of course, this should not be read to suggest that a site sponsor would in any event be liable. See, e.g., Archer v. Outboard Marine Corp., 908 S.W.2d 701 (Mo. Ct. App. 1995). The surviving victim of a boating accident and widow and mother of other victim brought an action for damages against a fishing tournament sponsor after a boating accident with a tournament competitor. See id. at 702. The circuit court granted summary judgment for the tournament sponsor, and the plaintiffs appealed. See id. The court of appeals held that: (1) sponsorship did not cause the crash, and (2) its sponsor did not exercise sufficient control over a tournament to render it liable. See id. at 703-04. Cf. Rudolph v. Arizona B.A.S.S. Federation, 898 P.2d 1000 (Ariz. App. 1995) (finding defendant owed the plaintiff a duty to assure that all participants in a timed competition operated their boats safely and in a reasonable manner without endangering the peace and safety of other persons in and about the lake where the competition was held).

302 Although somewhat unclear in the opinion, this seems to have been the plaintiffs failing argument in Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). "The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(e)(3).

303 See supra note 205-261 and accompanying text.

304 See, e.g., GTE New Media Servs. v. Ameritech Corp., 1998 U.S. Dist. LEXIS 15413 (D.D.C. 1998) (denying the defendant's Federal Rules of Civil Procedure 12(b)(2) motion to dismiss for lack of personal jurisdiction, because the continuous contact the defendant's interactive websites had with the forum district demonstrated that the defendants purposefully established minimum contacts, invoking the benefits and privileges of conducting activities in the forum district); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) (affirming summary judgment for the plaintiff Panavision, because the defendant's actions were aimed at the plaintiff in the forum state, and caused the plaintiff to suffer injury there); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 415 (9th Cir. 1997) (denying an Arizona plaintiffs argument that a Florida defendant was subject to personal jurisdiction because cyberspace is without borders, and a website that advertises a product or service is necessarily intended for use on a world-wide basis); No-Mayo v. Memminger, 1998 U.S. Dist. LEXIS 13154 (N.D. Cal. 1998) (granting summary judgment to the defendants, finding that defendants did not purposefully avail themselves of the privilege of doing business in the forum state of California, and that the due process requirements for personal jurisdiction were not met); Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. App. Ct. 1998) (holding that the defendant's discussion of the plaintiff organization in his website, without any other contacts, was not a minimum contact sufficient to allow the forum state to exercise personal jurisdiction over him); Minnesota v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997), qffd 576 N.W.2d 747 (Minn. 1998) (finding that the defendants were subject to personal jurisdiction in Minnesota by advertising a forthcoming online gambling service on the Internet and by developing from the Internet a mailing list that includes one or more Minnesota residents, thereby not offending the traditional notions of fair play and substantial justice).

305 In the Lexis®-Nexis® Law Review file, there were 82 hits as of January 16, 1999. On the same date there were no hits for "cybermedicine." In contrast, there have been some news items discussing cybermedicine. See, e.g., 'Cybermedicine' causes concern, Cincinnati Enquirer, Nov. 15, 1998, at E7; Jennings, supra note 182, at 1A.; Docs Explore Whether Online Medicine Is Good Medicine, supra note 27.

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