THCB

Do You Need a Medical Degree to Crowdsource Medicine?

There’s been a lot of talk about crowdsourcing lately. Everything from criminal investigations, to the tax code, to ski resorts have been crowdsourced or considered for crowdsourcing. And now medicine has thrown its hat in this trendy ring. KQED’s “Future of You” recently reported on a company called CrowdMed that wants to be the “Wikipedia of medicine.” (Due to space constraints, this blog post will not engage the important question of whether Wikipedia itself, is, in fact, the Wikipedia of medicine.)

CrowdMed touts itself as harnessing the wisdom of the crowd to improve and expedite diagnosis and treatment for patients whose doctors don’t have the answer. (The company was inspired by the difficulty its founder’s sister had in getting a rare condition diagnosed.) “Patients” pay CrowdMed a subscription fee ranging from $99-$249 per month in order to submit an account of their symptoms and medical history to CrowdMed’s “Medical Detectives.”

The Medical Detectives – who might be physicians or other healthcare professionals, but also might be any average Joe – read patients’ cases, and interact directly with patients to ask questions about their cases.

CrowdMed then uses “patented prediction market methods to filter out any ‘noise’ from all the input, to produce a report [for the patient] that highlights the top diagnostic and solution suggestions from the highest rated Medical Detectives.” Detectives who contribute the most useful diagnostic and treatment suggestions will be awarded “points, increased reputation, and even cash compensation from those patients offering it” in return for their medical sleuthing.

This business model raises too many interesting ethical, legal, and social questions to cover in just one blog post. But one obvious question is: How is this not the unauthorized practice of medicine?

As I’ve discussed in more detail elsewhere, states generally define the practice of medicine as including the diagnosis of diseases and conditions, and all 50 states require that individuals be licensed in order to practice medicine. California – where CrowdMed is based — prohibits the following activities if undertaken without a medical license: (1) practicing or attempting to practice, or advertising or holding oneself out as practicing any system or mode of treating the sick or afflicted; (2) diagnosing, treating, operating, or prescribing for any physical or mental condition, and; (3) conspiring with or aiding or abetting another to commit any of these acts.   California also prohibits the “corporate practice of medicine,” which includes non-physicians owning or operating a business that offers patient evaluation, diagnosis, or care.

Given these statutory provisions, CrowdMed may be on thin ice, legally speaking. Despite disclaimers on its website, there seems to be an argument that CrowdMed is conspiring with, or aiding and abetting, unlicensed individuals to provide diagnoses, and/or, via the reports it creates, may be engaging in the corporate practice of medicine. That said, I don’t know whether there are cases involving similar companies that may shed more light on California courts’ views of CrowdMed’s legal status. (If readers are more familiar with the caselaw, I’d love to hear your thoughts!)

Beyond the legal question, I think there is an interesting policy question here. Practice of medicine laws were generally written well before the internet era and the associated information explosion. In this modern period of consumer demand for, and access to, information, even if CrowdMed is violating the law, would that result make sense? Are consumers and the public health best served by restricting diagnosis to medical professionals?

One could say using CrowdMed is no different than posting a question to Yahoo, or simply asking friends and family for their thoughts (except, of course, those options are free). And I’ll admit that, as the parent of a rambunctious toddler, I have googled – though not exactly crowdsourced – many medical issues, like “one-year-old knocked tooth loose” and “can adults contract hand-foot-and-mouth diseasetoo,” and read many of those Yahoo answers as a starting point to inform conversations with physicians.

But, intuitively, CrowdMed seems to go beyond this kind of free, informal question-asking. Maybe it’s the imprimatur of using a “patented” technology to provide patients with the top “diagnostic and solution” suggestions. Maybe it’s charging a fee. Maybe it’s the very medical language on CrowdMed’s website, including the use of terms like “patient” and “diagnosis.” Maybe it’s their claims about how effective they are at solving patients’ cases. Maybe it’s all of this. Regardless, CrowdMed does seem to blur the line between what is and isn’t medical practice significantly more than posting a question on Yahoo does.

To the extent that CrowdMed has a profitable business model that persists, it will force us to consider these potentially tough policy questions about how we should define medical practice, and who should be allowed to engage in it. Patients with mysterious medical problems without a clear diagnosis or treatment strategy face many challenges and frustrations, on top of their medical issues. Finding new ways to address those challenges and frustrations is a laudable goal. But achieving that goal may not require crowdsourcing medicine among laypeople—indeed, another company, GrandRounds,* has a similar goal but provides patients with expert physician opinions. And there are potential problems associated with CrowdMed’s approach.  Just off the top of my head, CrowdMed’s model raises concerns about patient privacy, charging vulnerable patients fees for lay advice, whether CrowdMed and its Medical Detectives have a fiduciary duty to the patients, what recourse patients have if CrowdMed conveys bad advice, whether CrowdMed’s technology is a device within FDA’s jurisdiction, and whether this model actually produces valuable information, among other things. Moreover, even if we’re willing to accept CrowdMed’s model for those patients with particularly difficult medical problems, there is nothing that limits CrowdMed to those patients.

All of which is to say, there are some really interesting and challenging questions here, and I’m looking forward to seeing what happens.

Patti Zettler is with the Health Law program at Georgia State University. Formerly she was a fellow at Stanford’s Center For Law and Bioscience. This blog post originally appeared on Stanford’s Law and Bioscience blog.

*Disclosure: I went to law school with GrandRounds’s General Counsel.

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pzettlerWilliam Palmer MDJohn IrvineBobbyGvegas Recent comment authors
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Patti Zettler
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Patti Zettler

Thanks all for reading and for the interesting comments. I agree with Dr. Palmer’s point that having several brains considering a difficult problem — in medicine, or in any field really — can be very useful. But I’d be curious to know, especially from Dr. Palmer and others in the medical field, whether you think it is helpful to have a group of laypersons providing advice on medical issues, or if providing such advice ought to limited to individuals trained as physicians or other healthcare providers? My intuition is that lay advice, with or without the help of CrowdMed’s technology… Read more »

William Palmer MD
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William Palmer MD

There are many patients who profit from having several brains looking at their illnesses. You see these successes after a patient is discussed at a clinical conference or after a doc will discuss his case with peers at the doctors’ coffee room. It’s good to have other ideas and opinions. Suddenly new and correct answers will pop up. A new twist will turn the diagnosis into something that can be treated. It is exciting to see this happen. In California you can’t really do this legally by non-contact discussions on the Net. You have to–sometime–be in contact with the patient… Read more »

BobbyGvegas
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“Our Relationship to You

CrowdMed is strictly a venue [sic] does NOT enter into any other relationship with you, other than that of an independent contractor. Our Legal Terms in no way create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and CrowdMed or our affiliates.”
___

So, they’re essentially Uber?

Moreover, if they function as a CE or BA of a CE, and traffick in ePHI, they are subject to every provision of 45 CFR 164.3, .4, and .5 (re: HIPAA) whether they think so or not.