e – Healthcare Platforms – Navigating through issues sans a proper Legal Framework
The public can now do a variety of medical-related activities via the Internet thanks to rapid technological advancements in information and communication technology. The creation, modeling, administration, and sharing of health data and information to assist data analysis and rapid decision making in medicine and health care presented healthcare practitioners and patients with a variety of opportunities and problems. The use of e-healthcare in various nations is expected to save healthcare costs, increase service quality, and reduce medical errors. Furthermore, it provides the people with the information they require to make well-informed decisions regarding their health and healthcare. During the process, all relevant information about the patient is saved in the medical practitioner’s and other linked parties’ computer systems for record and reference purposes.
However, storing such information in a computer or system is not entirely safe due to the availability of technologies that can be used to circumvent or get access to the data. This could jeopardize the patient’s privacy and security.
The COVID-19 virus has boosted virtual medical consultations all across the world, particularly in India, resulting in a growth in telemedicine. In this technology-driven healthcare system, a patient interacts with a doctor via a digital platform (website, apps, etc.) that facilitates the connection by providing a means for information exchange. Some organizations, on the other hand, have begun to operate as e-commerce platforms by actively engaging as a third party. E-health platforms are a common term for these facilitators. 1mg, Lybrate, Practo, and CallHealth are some of the most well-known platforms.
Regulatory Framework for the Healthcare Platforms
The Medical Council of India’s (“MCI”) Board of Governors (“BoG”), authorized under Section 33 of the Medical Council of India Act, 1956, was obliged to adopt Telemedicine Guidelines (“Guidelines”) on March 25, 2020, in order to adequately control the issues which were prevailing regarding the laws on E-Health platforms. The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, included the recommendations in Appendix 5, giving them legal status.
The following provisions should be observed by such platforms, according to point 5 of these Guidelines:
- 5.1 The platforms must ensure that a patient sees a Registered Medical Practitioner (“RMP”), which is a doctor who is registered with a national or state medical board.
- 5.2 The platform is required to do due diligence on every RMP featured on its platform, including their name, qualification, registration number, and contact information. These facts must also be provided to patients by the platforms.
- 5.3 If the practitioner fails to give the relevant details as outlined above, the technology platform must immediately notify BoG, who will then notify MCI, who will take appropriate action.
- 5.4 Artificial intelligence systems are barred from advising patients, and only an RMP can be consulted.
- 5.5 They must guarantee that a sufficient mechanism exists for the resolution of end-user requests.
- 5.6 If the platform is blacklisted by BoG for violating the Guidelines, every medical practitioner who uses it will be barred from using it.
The Issues associated with Healthcare Platforms
Exemption to Healthcare Platforms as Intermediaries
The word intermediary is defined in Section 2(1)(w) of the Information Technology Act of 2000 (“IT Act”) as a person who receives, saves, or communicates an electronic document on behalf of an individual. According to Section 79(1) of the Act, an intermediary is not accountable for any third-party communication connection, data, or information that it hosts.
Corporations must meet the conditions set out in Section 79(2) of the IT Act to qualify for the exemptions given by Section 79(1), namely, the intermediary must not start a recipient for/modify the data in the transmit.
“Any active participation by the network or e-Commerce site entirely destroys the ring of protection or exemption that exists for intermediaries under Section 79,” the Delhi High Court stated in Christian Louboutin v. Nakul Bajaj. The Delhi High Court supported the aforesaid concept in Amway India Enterprises Pvt. Ltd. v. 1Mg Technologies Private Limited, which dealt with the responsibility of e-health sites and other e-commerce sites. It was also decided that these sites must not be able to pretend to be only a middleman while profiting from commissions on facilitation and services costs.
These sites, by providing consumers with a variety of RMP alternatives on their sites, assist in the transmission process by acting as active facilitators. As a result, they must not be entitled to claim an intermediate exemption. According to the Background part of the Telemedicine Guidelines, there was a legal gap before the Guidelines were issued, and telemedicine was controlled by the IT Act, among other legislation. The Guidelines fail to provide an exhaustive structure as to the responsibility of these platforms as an intermediary to their users, despite the fact that the objective was to create distinct legislation to regulate the practice of telehealth.
With the proliferation of e-health sites, the subject of their accountability for RMP criminal misdoings has become a hot topic. The Bombay High Court concluded in Deepa Sanjeev Pawaskar and Anr v. State of Maharashtra that a doctor providing counseling over the line was liable for criminal neglect. The court went on to say that “medication without sufficient diagnoses is criminal negligence” because there was no proper evaluation of the patient in this case. Because telehealth consultations are conducted essentially without any type of physical diagnosis, the danger of gross negligence is increased.
The Supreme Court of India, however, concluded in Sham Sundar and Ors. v. State of Haryana that “there is no vicarious responsibility in criminal law unless the legislation takes that also into its fold.” This raises the question of such sites’ culpability in the event that an RMP behaves in a highly careless manner on them, as they cannot be held vicariously accountable. Because the platforms are not free and operate as active facilitators in situations of gross medical negligence, a particular clause in the Regulations must be incorporated to hold these platforms accountable and guarantee that the sufferer is not under-compensated.
A patient can file a complaint against both a medical practitioner and an e-health network, both of whom may be located in separate jurisdictions. The platforms may utilize unfair elements in their terms & conditions against the patients because the Guidelines are silent on the location of jurisdiction in the event of a dispute. The National Consumer Disputes Redress Commission (“NCDRC”), however, concluded in Ranju Aery v. Spice Jet Limited that if a contract is accepted through the web, the claim for damages for customer complaints would emerge in the plaintiff’s storefront.
The NCDRC’s judgment, which applies in its entirety to e-health sites, serves to clarify the air in this respect. There is a significant disparity in the negotiating power of the parties involved. To make matters clear, the Regulations should have not left this point unanswered and really should have stated explicitly that, in any disagreements, the claim for damages shall be at the patient’s location.
Consumer forums have held e-commerce sites accountable for the lack of services offered to customers in a number of situations. In Amazon Seller Services Private Limited v. Gopal Krishan, the State Consumer Dispute Redressal Commission (“SCDRC”) of Chandigarh held categorically that “a representative who sells a product is legally obligated to assure the quality, and if the results are found defective, the person shall be vicariously liable for any loss caused to the buyer, along with the original developer.
In M/S. Hello Travel v. Harish C. Jain, the NCDRC underlined this premise with satisfaction. The internet site contended that because it was merely a middleman, it should not be held accountable for a travel company’s lack of services. The NCDRC found that the online portal could not avoid accountability by claiming ignorance of the discussions since it was its responsibility to oversee the quality of services supplied on its platform.
In the case of Indian Medical Association v. V.P. Shantha Medical Services were found to be under the definition of “services” as specified in Section 2(1)(o) of the Consumer Protection Act 1986 (“CPA”). As a result, patients are entitled to the same amount of safety as other customers under the CPA.
As a result, while consumer forums have clearly shown an interest in holding digital sites accountable for any defect in third-party services, the existing Guidelines remain quiet on the sites’ culpability in the event of medical malpractice by practitioners. The authors are optimistic that these forums will defend patients’ interests in a similar way.
In certain circumstances, a lack of assistance might be deadly to the victims. Taking this into consideration, the Guidelines should have included detailed language outlining the platforms’ responsibilities and remedies.
It can be concluded by saying that with the advent of technological advancement the health sector is also changing. In India, there is one doctor for every 1,457 people, and telemedicine might be a solution to our medical infrastructure issues. Although the Guidelines are a step forward in telemedicine regulation, they fall short of providing a full guideline for e-health sites. Because carelessness in these circumstances might end in a patient’s death, e-health platforms cannot be governed by the same general rules that apply to e-commerce sites, necessitating tougher and more specific regulations.
The expansion of e-Health apps has been propelled by cloud computing and mobile telecommunications, and healthcare organizations and patients throughout the world are adopting digital healthcare. E-Health applications have replaced many previously manual processes; electronic prescriptions and electronic health records have become the norm. The Guidelines were created with the goal of dispelling any misconceptions about e-health. The authors, however, feel they are insufficiently concise to control e-health networks. These Guidelines are in desperate need of updating, and a paragraph enumerating the platforms’ liability and the compensation to be paid in the event of an RMP’s carelessness should be included. The present COVID-19 pandemic has also justified the increasing significance of e-health platforms and their use in normal life.