The Legal Perils of Giving Medical Advice on the Internet

A Texas law barring veterinarians from offering online consultation draws First Amendment scrutiny.

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Is offering medical advice over the Internet a First Amendment right?

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Alan Howard, a law professor at Saint Louis University who teaches a course on the First Amendment, points out that there are many professions with services that primarily involve speech. "If you think about it, most things lawyers do require speech," he says. "They write legal opinions, they write briefs, they advise clients. So mainly what they're doing is speech. It doesn't follow that everyone has a First Amendment right to do the same thing."

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But Hines, unlike Cooksey, actually has a license associated with the advice he's giving. He is, after all, a veterinarian. In his case, Texas isn't saying he can't give medical advice for pets, it's limiting the mediums with which he can give that advice. Howard predicts the state will argue that a veterinarian would not be able to perform his job competently by just having symptoms described to him over the phone or email, but he says this argument is a "longshot." "If it can be shown that the advice the vet is giving over the internet based on what he's told is the same advice he would give in his office if the patient showed up, then I don't think that it should turn on the medium by which he's giving the advice,"

Some experts are skeptical that a veterinarian would be able to give high quality advice without examining the animal in person. Patricia Wohlferth-Bethke, the assistant director for the American Veterinary Medical Association's field services division, argues that in nearly all instances it's better to treat an animal in person as opposed to online. "You get the physical exam, you're able to question the owner, and it's that interaction that has the value – having the animal examined prior to treatment," she says.

Wohlferth-Bethke says that it may be appropriate in some cases for a vet to answer follow-up questions after an examination via email or other electronic means, but even then the vet's ability to give quality advice diminishes the longer it's been since the animal was seen in person.

"Depending on the disease process, sometimes a week is too much, sometimes a month is too much," she says. "So that's where the judgment of the veterinarian comes in."

Texas' case against Hines may be complicated by the vet's insistence that he doesn't actually "treat" any animals, and instead merely acts as a sounding board and second opinion. "I don't claim to be able to cure an animal over the internet, or that I have any kind of clairvoyant powers," he says. "But I've done this so long that I kind of know statistically what occurs and I try to find them the nearest source of decent veterinary care and get them there."

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New Yorker Cynthia Herrli already had a vet for her 17-year-old Russian Blue cat Sam when she reached out to Hines, who she says responded to her inquiries at all hours.

"When someone you love or your pet is really ill, you don't always think of the right questions to ask while you're at the vet's office," she says. "And for me especially, those questions came at night or when my cat was hurting or when I walked home from the vet. And he was always there, an email away."

It was Hines, she says, who urged her to take Sam straight to the hospital when the cat was experiencing alarming symptoms, and it was Hines who was there for her when Sam finally passed away. "He had so much more patience than my local vet. To hear that his approach is in jeopardy makes me angry."

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Jean Cervi reached out to Hines after the death of her golden retriever Dakota. The dog had died an early death, in her opinion, and she suspected that the vets she had taken Dakota to had misdiagnosed its ailments. Hines requested years worth of blood tests and then came back to her with a detailed report that confirmed many of her suspicions.

"The man is excellent at looking at tests you've had done or suggesting that you check this or check that," Cervi says. "He doesn't try to treat the animal over the phone. That wasn't my experience at all. But what he does is take the information you give him and paint a picture using his experience with animals, and then he tells you what you might go to the vet and have checked out."