LAW REVIEW
A Risky Business?
Guard yourself against Web site litigation.
Paul Peng, O.D., J.D., and Peter Rooney, ESQ.

A growing number of optometrists are posting Web sites on the Internet. If you're a part of this population, you need to be aware of the potential legal risks facing you because of your site. Consider the following scenario.

Dr. Smith, a private practitioner in California, creates and posts a Web site. His site provides information about the eye, conditions that affect it and treatment options for those conditions. A patient in Florida reads the information, takes Dr. Smith's advice, gets hurt and decides to sue.

Well, depending on the long arm statute in Florida, Dr. Smith may be required to appear in court there. This could also occur even if the person using Dr. Smith's information is Dr. Jones in Colorado.

Using the Internet to conduct business in another state extends the jurisdiction of that state to impose its laws on you.

Legal background

Jurisdiction is the ability of a given court of law to exercise control over you or your property. The long arm statute is a tool used to achieve this control. Black's Law Dictionary defines a long arm statute as, ". . . providing for a jurisdiction over a nonresident defendant who's had contact with the territory . . . ."

In terms of the Internet, we're now faced with legal questions about making contact with a territory or state in which we've never set foot. In optometry, any "cyber contact" may raise the issue of practicing medicine in states where we're not licensed.

The long arm statute at work

Traditionally, courts have required a tangible presence coupled with the intent of the nonresident to gain some benefit from the state to trigger the long arm statute. In the past, for example, a company would knowingly serve customers by providing goods and services in their states.

With the Internet, clients come to you from many states (and even around the world) without you, the vender, knowingly soliciting in that state or country. Except for commercial products, the only other "products" that travel great distances in Internet transactions are data. Previously, exchanging data over the Internet wasn't enough to trigger the long arm statute.

Does it apply?

I'm sure you're wondering what exactly is the kind of activity that'll trigger the long arm statute. Well, here are some points to consider:

• The sliding scale. In deciding whether or not a state's long arm statute applies, the court of the plaintiff (visitor) state will look at the interactivity between the Web site owner and the Web site visitor. To determine interactivity, a body of federal case decisions set out the "sliding scale" standard, by which the court analyzes if the Internet activity will trigger the state's long arm statute.
  On one end of the scale there's the "passive Web site," where information is posted and accessed with little or no interactivity between the creator and user. On the other end of this sliding scale is the "commercial Web site," where repeated ongoing transactions and exchanges of information between creator and user, or "interactivity" with customers takes place. Sites that are closer to the "commercial Web site" end of the scale tend to trigger the long arm statute.
• Deeming a site "commercial." In determining whether a site is commercial, the court may also rely on additional factors such as the profitability of a site and the relationship between its creator and users. The courts will examine whether or not the Web site owner profits based on interactivity. The state will also consider the relationship between creator and users.
  The more commercial or direct and intimate the relationship between Web site creator and user, the more likely the long arm statute will apply. Different considerations apply for consultation relationships and those consultants who may be considered as practicing optometrists.

Play it safe

Obviously, the law encompasses many gray areas and different states have different interpretations. These factors make it difficult to determine how we as professionals sharing information via the Internet are evaluated under the long arm statutes of different states.

By better understanding the concept of these statutes, you can better design your Web site. A suggestion: If you're designing a commercial site, include a clause stating that for any litigation arising out of the transaction, the user agrees to litigate the matter in the court of the creator.

If your goal is to create an educational or informational site, try to make your site passive. Avoid soliciting, exchanging or retaining data with Web site users. If you keep these things in mind when developing and using your Web site, you'll be less likely to get involved in out-of-state litigations.

Dr. Peng is in private practice in Castro Valley, Calif. He is an assistant clinical professor at the University of California, Berkeley, School of Optometry. Also at U.C. Berkeley, Dr. Peng is coordinator of ocular telemedicine and the director of the China Optometric Resource Development Program. He's the director of education at the Pacific Laser Eye Center at U.C. Berkeley, as well. In addition, he's also a consultant in various aspects of law involving optometry.

Mr. Rooney is employed at John F. Kennedy University School of Law in the San Francisco Bay Area. He's a part-time consultant in the legal aspects of technology and the medical profession.