Can you be sued for offering advice online?
July 14, 2009 7:23 AM Subscribe
Has anyone been sued for medical or legal advice dispensed online?
It seems every post offering legal advice begins with "I am not your lawyer" and medical advice is prefaced with "I am not your doctor". Does offering this prevent a lawsuit from occuring? Does it offer any protection at all to say that this is not legal advice? Why do users always seem to post this?
It seems every post offering legal advice begins with "I am not your lawyer" and medical advice is prefaced with "I am not your doctor". Does offering this prevent a lawsuit from occuring? Does it offer any protection at all to say that this is not legal advice? Why do users always seem to post this?
Of course not. You can sue anyone for anything. Whether it gets anywhere in court is a different story.
Malpractice requires 4 things (I am not a lawyer, ha!):
1) A provider-patient relationship;
2) A breech of that relationship in regards to proper medical care;
3) The patient must have suffered harm;
4) There must be a relationship between the breech and the harm.
The "I am not a doctor" bit is to suggest to the person asking that this is generally medical information, and not advice from YOUR doctor, and to say that we have no professional medical relationship.
I'll be honest, I start writing replies to about half or two-thirds of the medical questions on AskMeFi and then delete my replies because I don't feel it's worth the legal risk.
posted by gramcracker at 7:33 AM on July 14, 2009
Malpractice requires 4 things (I am not a lawyer, ha!):
1) A provider-patient relationship;
2) A breech of that relationship in regards to proper medical care;
3) The patient must have suffered harm;
4) There must be a relationship between the breech and the harm.
The "I am not a doctor" bit is to suggest to the person asking that this is generally medical information, and not advice from YOUR doctor, and to say that we have no professional medical relationship.
I'll be honest, I start writing replies to about half or two-thirds of the medical questions on AskMeFi and then delete my replies because I don't feel it's worth the legal risk.
posted by gramcracker at 7:33 AM on July 14, 2009
Well, I am neither your doctor nor your lawyer but my supposition is this: often a responder who is not a doctor or a lawyer nonetheless has pertinent first-hand experience with the issue at hand, and wants to share that experience, with the understanding that the experience is a personal one, and that professional advice should be sought.
Take an obvious example: Imagine that you say you have a pain in your left chest, and that you can't raise your arm.
I lifted a lot of weights yesterday and my shoulders and pectorals are very sore. I can't raise my left arm very much.
Should you conclude on the basis of my personal experience that you have a pulled muscle? Or that your muscle fibers have been torn and your body is rebuilding the muscle?
No, you could very well have had a heart attack.
Ergo, I am not your doctor. In other words, seek professional advice.
posted by dfriedman at 7:36 AM on July 14, 2009
Take an obvious example: Imagine that you say you have a pain in your left chest, and that you can't raise your arm.
I lifted a lot of weights yesterday and my shoulders and pectorals are very sore. I can't raise my left arm very much.
Should you conclude on the basis of my personal experience that you have a pulled muscle? Or that your muscle fibers have been torn and your body is rebuilding the muscle?
No, you could very well have had a heart attack.
Ergo, I am not your doctor. In other words, seek professional advice.
posted by dfriedman at 7:36 AM on July 14, 2009
Can be? Absolutely:
"Rendition of legal advice by a person who is not licensed to do so can be the basis for a charge of unauthorized practice of law."
(see the references on that page for more)
Have been? If you include people claiming to be MD:s to sell crap on the Internet, very likely.
posted by effbot at 7:36 AM on July 14, 2009
"Rendition of legal advice by a person who is not licensed to do so can be the basis for a charge of unauthorized practice of law."
(see the references on that page for more)
Have been? If you include people claiming to be MD:s to sell crap on the Internet, very likely.
posted by effbot at 7:36 AM on July 14, 2009
The other thing to consider, is especially with questions of a legal nature, posters very often fail to specify the jurisdiction to which they are subject, perhaps because most people don't understand that different jurisdictions have different requirements.
posted by dfriedman at 7:43 AM on July 14, 2009
posted by dfriedman at 7:43 AM on July 14, 2009
*Addendum, I am a doctor, but not YOUR doctor.
posted by gramcracker at 7:44 AM on July 14, 2009
posted by gramcracker at 7:44 AM on July 14, 2009
At least as a lawyer, there are two ways you can get into trouble: Being sued by the recipient of the advice (negligence claim, legal malpractice) and being disciplined for the unauthorized practice of law.
If I am a lawyer licensed in NY, and I am, and I render legal advice to someone living in PA, where I live but am not licensed, PA could charge me with unauthorized practice because I am not a member of their bar, do not know PA law and not authorized by the Commonwealth of PA to give legal advice. This is for the protection of those who may rely on my advice, and to discourage me from giving such advice because it is likely to be close to worthless.
What constitutes "legal advice" is a complex question. "Get a lawyer" or "read your local tenant's guide" are probably not legal advice. There can be issues of whether a client-lawyer relationship can be created by online consultation through an open forum (in my ethics course, I learned that at least in my state, it could, even absent a retainer or other express acknowledgment of the relationship). Saying "this is not legal advice, I am not your lawyer" and so forth may not always be sufficient to prevent the relationship or the unauthorized practice charge from attaching, so it's wise to make sure you both SAY it's not legal advice, and NOT give legal advice.
As to a doctor, I am not a doctor and don't know their licensing/practice requirements, but I would think any doctor worth his or her salt would recognize that they should not make diagnosis or recommendations based on a patient's self-report of symptoms over the internet when that doctor has had no opportunity to examine the patient. This would be likely to lead to negligent medical advice, from a legal perspective (violation of the standard of care) and potentially likely to violate medical ethics of doing no harm.
posted by bunnycup at 7:49 AM on July 14, 2009
If I am a lawyer licensed in NY, and I am, and I render legal advice to someone living in PA, where I live but am not licensed, PA could charge me with unauthorized practice because I am not a member of their bar, do not know PA law and not authorized by the Commonwealth of PA to give legal advice. This is for the protection of those who may rely on my advice, and to discourage me from giving such advice because it is likely to be close to worthless.
What constitutes "legal advice" is a complex question. "Get a lawyer" or "read your local tenant's guide" are probably not legal advice. There can be issues of whether a client-lawyer relationship can be created by online consultation through an open forum (in my ethics course, I learned that at least in my state, it could, even absent a retainer or other express acknowledgment of the relationship). Saying "this is not legal advice, I am not your lawyer" and so forth may not always be sufficient to prevent the relationship or the unauthorized practice charge from attaching, so it's wise to make sure you both SAY it's not legal advice, and NOT give legal advice.
As to a doctor, I am not a doctor and don't know their licensing/practice requirements, but I would think any doctor worth his or her salt would recognize that they should not make diagnosis or recommendations based on a patient's self-report of symptoms over the internet when that doctor has had no opportunity to examine the patient. This would be likely to lead to negligent medical advice, from a legal perspective (violation of the standard of care) and potentially likely to violate medical ethics of doing no harm.
posted by bunnycup at 7:49 AM on July 14, 2009
Personally, I just don't like misrepresenting myself. I am neither a doctor nor a lawyer, but sometimes I have worthwhile advice anyway, and more often than not, someone here has something helpful to say. That's the point of crowdsourcing - there's a benefit to people thinking in a non-mainstream way.
On the other hand, I don't want anyone to think that I speak from a position of authority that I don't have. I can say anything here, and I'm generally trying to be helpful. But, please take me (and all of us) with a grain of salt.
The only advice from here that you should always take is "See a doctor!" or "Get a lawyer!" :)
posted by Citrus at 8:35 AM on July 14, 2009
On the other hand, I don't want anyone to think that I speak from a position of authority that I don't have. I can say anything here, and I'm generally trying to be helpful. But, please take me (and all of us) with a grain of salt.
The only advice from here that you should always take is "See a doctor!" or "Get a lawyer!" :)
posted by Citrus at 8:35 AM on July 14, 2009
Response by poster: I guess I should clarify, I got carried away in the question and was a bit unclear. I was looking for an actual case that went to court where online activity was used as evidence. Everything I have found so far seems purely anecdotal. Thanks!
posted by ShootTheMoon at 8:44 AM on July 14, 2009
posted by ShootTheMoon at 8:44 AM on July 14, 2009
Does offering this prevent a lawsuit from occuring? Does it offer any protection at all to say that this is not legal advice?
In a sense, yes. It's more than just a CYA move: the tenor of many AskMe answers to legal questions is very matter of fact (even if they're completely wrong -- and they very often are) and it would be easy for someone unfamiliar with AskMe or the internet in general to misconstrue such certitude as authority.
If a person doesn't think they're getting legal advice, they are (at least in theory) less likely to sue you for giving them BAD legal advice.
Aside from that, from a legal stand-point, saying "this isn't legal advice" / "I'm not your lawyer" really provides very little protection. Those aren't talismanic phrases that absolve the speaker of responsibility -- if someone were to be sued, the disclaimers would be considered, but if everything else pointed to "this is legal advice", just saying it that it's not isn't going to help much.
posted by toomuchpete at 8:48 AM on July 14, 2009
In a sense, yes. It's more than just a CYA move: the tenor of many AskMe answers to legal questions is very matter of fact (even if they're completely wrong -- and they very often are) and it would be easy for someone unfamiliar with AskMe or the internet in general to misconstrue such certitude as authority.
If a person doesn't think they're getting legal advice, they are (at least in theory) less likely to sue you for giving them BAD legal advice.
Aside from that, from a legal stand-point, saying "this isn't legal advice" / "I'm not your lawyer" really provides very little protection. Those aren't talismanic phrases that absolve the speaker of responsibility -- if someone were to be sued, the disclaimers would be considered, but if everything else pointed to "this is legal advice", just saying it that it's not isn't going to help much.
posted by toomuchpete at 8:48 AM on July 14, 2009
[IANAL; IAtheSonOfADoctor]
One major consideration in these matters is probably the difference between education and advice.
It's entirely possible for a doctor or a lawyer to educate and provide information without providing advice. If you answer the question "My arm hurts. why?" with a list of half a dozen possible diagnoses. Or, if you answer the question "My neighbors smell bad. What can I do?" with a list of legal recourses. Educating a person about possible courses of action, or possible diagnoses, seems unlikely to be seen as advice without an explicit arrangement having been made. Otherwise, how would all the layman-staffed health hotlines and websites work?
On the other hand, if you then say "You have had a heart attack" or "You should sue the bastards", that's clearly advice. There is an expectation that, when a doctor says "you've probably had a heart attack" that you can rely on that statement to make health decisions--which is why doctors who make bad diagnoses are sometimes found liable to their patients. The same sort of deal likely applies for lawyers.
I've always figured that the "IANAL" flags were a courtesy, saying "I'm not a lawyer, just a dude, but here's my understanding of it". Whereas the "IAALBNYL" flags were to explicitly state that no relationship was being formed.
posted by Netzapper at 1:30 PM on July 14, 2009
One major consideration in these matters is probably the difference between education and advice.
It's entirely possible for a doctor or a lawyer to educate and provide information without providing advice. If you answer the question "My arm hurts. why?" with a list of half a dozen possible diagnoses. Or, if you answer the question "My neighbors smell bad. What can I do?" with a list of legal recourses. Educating a person about possible courses of action, or possible diagnoses, seems unlikely to be seen as advice without an explicit arrangement having been made. Otherwise, how would all the layman-staffed health hotlines and websites work?
On the other hand, if you then say "You have had a heart attack" or "You should sue the bastards", that's clearly advice. There is an expectation that, when a doctor says "you've probably had a heart attack" that you can rely on that statement to make health decisions--which is why doctors who make bad diagnoses are sometimes found liable to their patients. The same sort of deal likely applies for lawyers.
I've always figured that the "IANAL" flags were a courtesy, saying "I'm not a lawyer, just a dude, but here's my understanding of it". Whereas the "IAALBNYL" flags were to explicitly state that no relationship was being formed.
posted by Netzapper at 1:30 PM on July 14, 2009
« Older Help me follow up to an interview! | What is the current state of the art in MAME... Newer »
This thread is closed to new comments.
posted by He Is Only The Imposter at 7:31 AM on July 14, 2009