Crowdsourcing 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 disease too,” 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.

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

3 Responses to “Crowdsourcing Medicine?”

  1. Huge gray areas. When a parent buys an over-the-counter thermometer and uses it to diagnose fever in their child, are not they practicing medicine by the definitions of California’s law? And what if they use over-the-counter Tylenol to treat that fever? Is California’s practice of medicine law unconstitutionally vague?

  2. The law is not constitutionally vague, because men of common intelligence are able to recognize that practicing medicine without a license demonstrates behavior which is commonly accepted as being that behavior a doctor would engage in – except that the person charged with this crime has engaged in this behavior without training or a medical degree: two elements easily discernable as facts or ingredients needed to define the offense, under “In re Winship.” [ citation omitted ]

    However, the California statute may be unconstitutionally broad where it overreaches or blurs the line of demarcation where giving “specific” advice on a particular condition that a single patient suffers from; when no harm accrues, or when the patient himself does not complain that the advice was detrimental to his health, or resulted in a complication or poor outcome – which would not have occurred had the advice not been given, or taken.

    If a person is an M.D., but has no license, and gives advice which results in a beneficial outcome…or avoids a negative outcome that would have occurred had the advice not been given: then I believe the perpetrator falls outside the scope of the statutory prohibition against “giving advice” – and that, “as applied” to that practitioner: the statute is vague or broad, and therefore unconstitutional.

  3. Your article appropriately raises the issue that many states’ statutes precluded the advent of today’s current feeding frenzy to share information; further blurring the line – as I see it – between the criminality that goes hand-in-hand with giving advice on even specific medical matters by those without formal medical training, and the giving of good [ non-harmful ] advice by doctors. Importantly noting that the letter and spirit of these statutory definitions pertaining to ‘advice-giving’ seem to have emphasized the collective legislative intent to prevent the giving of advice [ and the performance of appendectomies ] by those “never” schooled in medicine. Thus, other than a First Amendment question of vagueness – there seems to be here a question of freedom of speech if a non-licensed professional can be prosecuted for giving specific advice he believes is in the best interest of the patient; if we are going to make laws giving carte blanche permission to ‘for-profit’ companies [ over whose personnel credentials we have no control ]: while at the same time carting ‘grandpa doctor’ off to the houses of detention. This also raises the issue of who’s opinion should prevail on critical medical questions; and results in circular and unreliable opinion-rendering – which totally overlooks the clinical experience of some specialists’ who will be quieted as the ‘Trojan Horse’ of for-profit opinion – rendering removes a potential source of valuable information which is taken from patients unceremoniously by statute: and replacing it with information over which the state has no control to regulate – all of which effectively punishes the wrong guy, while allowing for the same unsupervised giving of the shoddy care that the statute was designed to prevent in the first instance. [ The prohibition against giving advice by unlicensed persons ].

    The giving advice by a non-licensed, but trained M.D., under most current constructions of state statutes, can – as a pure matter of law – never be “The Unauthorized Practice of Medicine.”

    For that reason; the portion of the statute against giving reasoned and “cautioned” advice should be rewritten in the statute in order to “warn” – which the failure to do renders that wording in the statute “facially vague,” and unconstitutional.

    Thank you so very much for this opportunity to comment on this issue.

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