Telemedecine and changing medical law.

Telemedicine is broadly defined as the use of information technology to deliver medical services and information from one location to another. (California Telemedicine Development Act of 1996, 1996 Cal. Stat. 864 [sections] 1(d).) This concept will markedly affect how medicine will be practiced in this country and across the world.

The concept predicts a world where geographical barriers will cease to exist and care will be concentrated in the hands of physicians in a few centers. Telemedicine will provide the ability to improve the quality of care available to large segments of the world's population.

Long-distance professional relationships have existed in medicine for years. A physician presented with an interesting problem might call a professor in another state for a consult. Or a physician might send a slide to a dermatopathologist located in another state or to the Armed Forces Institute of Pathology (AFIP) for a second opinion.

Yet many of these consultations were technically illegal. If the long-distance consulting physician was in another state, he or she could have been practicing medicine without a license in the state where the patient lived. If the AFIP were to render a negligent opinion, what recourse would the patient have? Would the patient have to file a federal tort claim? Would the practice of medicine be involved? Where would such a case ultimately have to be brought? Whose law would apply? These questions rarely arose when the number of these consultations was small and the primary responsibility for patient care generally rested with the local physician.

In the few instances where litigation has been brought, the patient's state has found sufficient jurisdictional contacts to hold the distant physician in the litigation. As the number of distant consultations increases, so will the opportunity for error, producing an increase in the number of cases.

A simple example of telemedicine is sending laboratory data from a hospital laboratory to a physician's office in an adjacent building. MRIs and CTs are digitally formatted and can easily be sent over computer lines. Digital mammography and angiography are also available, and digitalization of all radiological studies is only a matter of time.

The process of telemedicine is not limited to reviewing digitalized information. Using high-speed computer lines and video cameras, consultations can be and are being carried out:. The consultant can see the patient while the examination is being performed. The consultant can remotely see into the ear canals or see a small lesion on the skin or review an electrocardiogram. Special stethoscopes can enable the consultant to listen to the patient's heartbeat as well as direct where the stethoscope should be placed on the chest. The consultant can then recommend what additional tests should be performed or what treatment might benefit the patient the most.

Technological advances always bring new problems. But they can also bring solutions and improvements. For example, the quality of care can improve if the technology is used correctly. A rural radiologist might have access to MRI technology but might not have had sufficient training in neuroradiology. Having a neuroradiologist available for a telephone consultation would result in better readings. Having a dermatologist look at a lesion for a patient 200 miles from the nearest dermatologist would save the patient the time and expense of travel, perhaps avoid an unnecessary biopsy, or call attention to the need for one to be performed earlier.

Another use of telemedicine would be communication with isolated patients. Using a computer or perhaps interactive television, a physician or nurse practitioner could see and communicate with a patient without the need for a visit. Halter monitor recordings can be checked over a telephone line and a determination made as to whether medications to regulate a patient's heartbeat might need to be changed. The consultant will be able to not only see the monitor reading but also see and evaluate the patient at the same time.

County, state, or national boundaries need no longer limit providing medical services. The only practical limits to telemedicine today are the availability of the technology to the patient, physician, and consultant.

International connections

On a global basis, some U.S. institutions are wing for patients in the telemedicine market. For example, the Mayo Clinic of Rochester, Minnesota, has an active telemedicine relationship with two hospitals in Jordan. The clinic is also in the process of setting up a similar relationship in the United Arab Emirates.

In programs like these, telemedicine enables U.S. medical centers and universities to provide educational programs to distant hospitals. Patients in these countries benefit from detailed consultations and advice on treatment without having to travel.

The U.S. government has seen the need for telemedicine in two areas. The Surgeon General has been directed to develop the capabilities of telemedicine for use in a major disaster. (42 U.S.C. [sections] 2487f (1994).) Satellite communication will enable consulting physicians to "see" patients at a disaster scene and help with triage and treatment discussions.

However, more funding has been directed toward providing rural areas with telemedicine capabilities because of the immediate benefits. A rural health services outreach demonstration grant program awards grants to demonstrate, operate, or evaluate telemedicine services to rural areas. (42 U.S.C. [sections] 241 (1994).) The program is administered by the Office of Rural Health Policy. (42 U.S.C. [sections] 254c (1994).)

The response by individual states to the concept of telemedicine has been mixed. California has recognized its importance. However, many states have been concerned that a consulting physician may not be licensed in the state where a patient is located. The argument is that a state would have no control over a practitioner from another state or the type of care delivered.

Another problem for states is not knowing if a physician is licensed at all, is under suspension, or has lost the license to practice medicine. If the person is in trouble with local authorities, those authorities generally will only distribute information to states where the practitioner has another license. There is no central clearinghouse for physician information.

Proposals

A variety of proposals have been suggested to deal with the potential problems of telemedicine. Some states have enacted statutes and developed regulations, while others are waiting to see how the technology develops.

The Federation of State Medical Boards is considering a model telemedicine act that would provide for a limited license permitting telemedicine contacts. This would probably be insufficient as individual states would have to enact statutes. One solution would be to allow interested practitioners to apply for a national license. Then, when a problem regarding a physician's competence arose in a given state, the physician would be easily identifiable. A national statute would permit all relevant states to be notified. Practitioners could be secondarily licensed in all states where they actually practice.

The state of the physician's primary practice would be the depository for all information about the physician. If the practitioner was sued elsewhere, that information would be reported to the national entity and then to the appropriate state. If the license to practice was suspended or revoked locally, that information could be disseminated nationally in only the time it took to enter the information in a computer and access a modem.

Malpractice litigation presents a separate question. Texas has addressed the situation directly.

A person who is physically located in another

jurisdiction but who through the use of any

medium, including an electronic medium,

performs an act that is part of a patient care

service initiated in this state ... and that would

affect the diagnosis or treatment of the patient,

is engaged in the practice of medicine in this

state for the purposes of this act and is subject

to this act and to appropriate regulation by the

board.

(Tex. Rev. Civ. Stat. Ann. art. 4495b [sections] 3.06(i) (West 1997).)

The act implies the physician so practicing might well be practicing without a license. When this is the case and a patient is injured by the physician's negligence, the Texas act gives the patient a powerful legal weapon against the physician.

A physician-patient relationship should arise, as it currently does, when the individual practitioner becomes involved with the particular patient, whether that involvement is providing a consultation, performing an examination, or making a decision. As there are currently no cases deciding this issue, the presumption must be that current rules will apply.

However, as telemedicine grows, practicing without a license will not be the only problem. Jurisdictional issues will arise. When there is a claim of malpractice, the plaintiff and practitioner should assume that the law of the patient's jurisdiction will apply. The care was provided in the state, and the patient did not leave the state to see the physician. The standards of care are generally the same from state to state for board-certified physicians.

The implications may extend beyond U.S. borders. If the patient is in a foreign country where bringing a suit for malpractice is difficult, and the patient is alleging injury as a result of malpractice by a New York physician, there may be no prohibition against bringing that suit in a New York trial court.

Problems associated with the conflict of laws will take on new meaning and new importance. What if a patient comes from a country where there is no malpractice litigation and no provision for suing a physician? What if the malpractice committed by the consultant is clear and obvious and the patient has sued the physician in his or her home state? Would the law of the patient's country apply or the law of the physician's state? This is one of many unanswered questions that await attorneys who will represent patients injured in situations involving telemedicine.

Telemedicine will alter how medicine is practiced. There is no question that it will also affect how law is practiced.

Lee S. Goldsmith, M.D., practices law with Goldsmith & Richman in Englewood Cliffs, New Jersey.