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Regulating in the Age of Telemedicine

The author, an attorney and medical doctor, is a partner with Goldsmith Ctorides & Rodriguez in Englewood Cliffs.

As medical practice has evolved over the last 50 years, we have seen great changes in the manner in which treatment has been rendered. The general practitioner who was at one time the internist, obstetrician and perhaps surgeon has limited his practice with the development of specialties. The discovery of a vast armada of drugs and diagnostic tests has separated the patient from the physician but enabled previously unimagined treatment to be supplied. The day when all treatment and diagnostic tests were one-on-one has disappeared to the point that often the physician who has makes the definitive diagnosis had no physical contact or conversation with the affected patient. The patient may never see the radiologist who interpreted the films or the pathologist who reviewed the specimens. There is no need for patient contact.

Concurrently, medical and state authorities have developed more sophisticated methods of credentialing physicians so that the incompetent and unqualified are excluded from practicing medicine. Credentialing is done not only within societies, hospitals and locally by the state, but information is now kept nationally in the National Practitioner Data Bank and the new American Medical Association credentialing system. The process of credentialing is a separate issue. However, there is a trend to national -- in addition to local -- control of the individual physician.

The New World

Telemedicine is the practice of health care delivery, diagnosis, consultation, treatment transfer of medical data and education using interactive audio, video or data communication.

A first scenario would be the rural 50-bed hospital. The members of its staff may include a radiologist, a couple of family practitioners and internists, an obstetrician/gynecologist and a surgeon. There may be a CAT scan on premises and a mobile MRI might come to the hospital once a week or once every other week. If a patient needed any other type of treatment or required a consultation with a specialist that patient would have to be sent to another institution. The secondary or tertiary medical facilities might require hours of driving or a plane ride.

Consider that instead of the trip the patient were placed in a room with television cameras and the consultant were able to direct and view an examination performed by the internist and evaluate the patient. A determination could be made by this specialist as to the course of treatment and what further and additional testing would have to be performed.

As part of this review of the patient's condition an MRI was performed locally. CAT scans and MRIs, as well as electrocardiograms and other tests, can be sent in a digitized format and read anywhere. If the radiologist has questions about the interpretation of MRI, she can send the results to a neuroradiologist for review and analysis at a medical center. That medical center could be located anywhere in the country or the world.

Taking the process one step further, the patient in this local hospital can travel with a medical information card that provides access to his medical records contact with his treating physician. The records and the treating physician could be anywhere in the world. The local general practitioner can review the card, receive the records, and call the patient's physician, perhaps in Japan. After consultation, the local physician can carry out his treatment based on the information received.

In all three instances, the specialist, the neuroradiologist and the treating physician could be from a different state or country. Most certainly none of the three would be on the staff of the local hospital and no one would have had his or her credentials checked by those authorities. The state in which the patient was located may also have had no knowledge of the physician-to-physician interaction.

However, in all probability, the patient and the local physician would have received better information and a more complete evaluation aiding in the diagnosis and treatment that would be rendered.

Compensation will not be a problem. Depending on how systems were established, the consultant and neuroradiologist would submit bills for their examinations and consultations. Indeed, California has made provisions for the "foreign" physician to be reimbursed in accordance with medical payments, and legislation pending in Congress would require that the Secretary of Health and Human Services make the necessary arrangements for Medicare funding.

The economics of telemedicine also are clear. Centrally located neuroradiologists could read and review films on a 24-hour-a-day, seven-day-a-week basis. While a local hospital might have that MRI visit on a Saturday, the films might not get read by the single radiologist until Monday. If emergency films were done at two in the morning through the emergency room they could be read immediately even if the local radiologist were not available due to a vacation or a blizzard. The cost to the individual patient or carrier would be no greater, and by concentrating the readings in one location, with individuals specially trained, the volume of readings should allow for a price reduction. Considering the training and specialization of the readers, the interpretations would be more consistent and of higher quality.

In the example of the consultant viewing the patient through a two-way television system, the cost savings might also be great. The patient would not have to travel to the physician, find accommodations and perhaps have extensive treatment expenses. The diagnosis may be made more rapidly, more accurately and treatment instituted as a result of the speed in which the diagnosis was made.

As patients, we do not realize how much of the above is currently going on and has been going on in other forms. The telemedicine or distant medical processes involving patient care have been going on to a greater or lesser extent for years and are only increasing. Many of the samples taken for laboratory analysis are sent to distant laboratories. Specimens taken for genetic testing are sent to specific laboratories across the country. Dermatological specimens may be sent out of state to hospitals with pathologists solely specializing in dermatopathological analysis. The economics of scale reduce the costs for all parties involved.

Potential Problems

As a result of the increase in telemedicine volume and in the distances involved, states have become increasingly concerned because of the potential problems. The states have no information or control over the consultant physician. The states have no mechanism to review the quality of care or information about the physician if a problem were to arise at the hospital or facilities in which the physician was based. It would be a situation in which the physician would be practicing medicine in a state in which he or she were not licensed.

California has attempted to solve the problem in two ways. First, the patient has to be fully informed and consent to the process. Second, the local practitioner is responsible for and has the ultimate authority over the care and primary diagnosis. This scheme, however, probably not does not absolve the "foreign" doctor of potential liability.

We have seen from case law that if a patient in New Jersey were to visit a physician in New York for care and treatment, our courts have consistently declined jurisdiction. There is no nexus to New Jersey since none of the events occurred within the state. A suit would have to be brought in New York and New York law would apply. However, telemedicine presents a different situation. Where a New Jersey patient receives long distance advice and tests results, the out-of-state consulting physician and laboratory both know that the information is to be used for and on a patient in New Jersey.

Sufficient Contacts?

In all likelihood, New Jersey courts would find that there were sufficient contacts to allow jurisdiction over the out-of-state physician. Therefore, that physician could be sued and a judgment rendered. However, there are practical issues that have to be raised. Could there be the allegation against the physician that he or she was the practicing medicine without an appropriate license?

The AMA has taken the position that the "foreign" physician should be licensed in both the state with which there is communication as well as the base state. The New Jersey State Board of Medical Examiners has taken the same position and indicated that a physician practicing telemedicine must be licensed in New Jersey. Indeed, legislation to that effect may be enacted this year.

Some states prohibit telemedicine consultations by physicians from out of the state who are not licensed by the particular state board of medical examiners. Certainly, if an individual physician were found to be practicing medicine without a license, then there would be a greater likelihood that a plaintiff would prevail, regardless of the merits of the case.

Added problems for the consultant would include scheduling and perhaps traveling to the state to have depositions taken and the requirement of being present at the time of trial. The consultant might ordinarily balk at such requirements and request that if the consultation was accomplished using telemedicine, all other proceedings be handled similarly. Obviously it would depend on the given situation and arrangements that could made between the attorneys in the individual case.

There would also be the secondary effect that the "foreign" physician would be depriving local physicians of income that they could generate not only for themselves but for their hospitals. This loss of income would occur if all MRIs from a given region were read by a "foreign" medical group.

There is no question that telemedicine will be a great resource for the patient and the physician in the rural hospital. The local physician can currently research a problem using Physicians On Line or CompuServe's access to Paper Chase. The world of the National Library of Medicine is open and available to all patients.

But telemedicine not only allows for lectures but also could allow the local physician to hold a clinic for multiple patients while a "foreign" specialist reviews the case records and discusses the problems found in each and every patient, with the patients' awareness and ability to ask and have questions answered.

The major problems to be resolved will be the potential issues associated with the rare medical malpractice case and the legitimate concern in the individual states' interest in protecting and safeguarding its citizens.


Copyright 1997 New Jersey Law Journal. Reprinted with permission.


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