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Telemedicine is coming of age. Healthcare providers worldwide are using advanced communications technologies to expand and improve delivery of healthcare services. These services are being developed in some of the most remote regions of the world. For example, in July the U.S. military airdropped telemedicine equipment at the South Pole to permit real-time medical consultations with a scientist who discovered a lump in her breast and was unable to reach healthcare services in person due to extreme weather conditions.
One of the most extensive applications of telemedicine in North Americas teleradiology, Teleradioligists hope to accomplish a variety of goals such as providing imaging services to facilitate without on-site radiological support and expediting consultative services in remote locations.
To achieve these goals, teleradiology practitioners must navigate through legal issues, although virtually no relevant case law or precise statutory language exists. The issues include licensure, malpractice, fraud and abuse and reimbursement.
MALPRACTICE
Technology is continuously creating new societal paradigms that carry over into the courtroom. Malpractice suits based on telemedicine can be expected. While courts will likely apply traditional principles, telemedicine will present some unique issues, such as: Which state or country has jurisdiction over the claim when the physician and patient are in separate states or countries? What duty does a physician have to continue treating a patient seen only through telemedicine? Will providers violate a duty of care by failing to use telemedicine? Physicians have been held liable for advice rendered over the phone to patients they have never seen. When it is available? Can the manufacturers of telemedicine equipment be held strictly liable for their product's defects? Will liability be passed on to the physicians and hospitals?
In order to establish a malpractice claim based on negligence, a plaintiff must show three elements: that a physician -patient relationship existed, that the physician breached a duty of care for the patient, and that this breach caused the patient's injury.
The legal relationship typically starts when the patient seeks medical advice or treatment and the physician accepts, creating a contractual relationship. The physician agrees to the duty of rendering appropriate care and the patient is generally obligated to tender payment. This relationship can be express, when the parties openly write their intentions, or implied, when the parties agree through or conduct.
Consulting or referral arrangements have been found to create a legal relationship. Recently, a pathologist was held liable for rendering negligent services to a patient although his contract was only was only with the referring physician. This result creates a strong argument that liability could exist for radiologists who provide teleradiology services.
In addition, physician has been held liable for advice rendered over the phone to patients they have never physically seen. Therefore potential benefits of teleconferencing, e-mail, and other electronic communications must be considered in light of the potential liabilities.
Physicians are held to the degree of skill and care ordinarily exercised by other members of their profession acting under like circumstances. Specialists are held to the same degree of skill and knowledge as the average member of their specialty practice area. The question remains as to whether telemedicine practitioners will be held to the same standards that apply in face -to-face examinations.
Physician liability for negligent use of telemedicine will depend on a variety of factors, including: whether the physician adhered to existing standards and professional practices, the limitations to the telemedical equipment in diagnosis and treatment, the availability of alternative treatment, and the patient's expectations.
The ACR has created standards for teleradiology covering, among other things, physician, technologist, and physicist qualifications; guidelines for image management; transmission of images and patient data; display capabilities and security; licensing, credentialing, and liability; communications; and quality control and quality control and quality improvement. While the standards are only recommendations, they are intend to promote high-quality radiological care, and could be embraced by a court as evidence of the teleradiology standard of care.
A finding that a plaintiff's injury was proximately caused by the physician's breach of duty is often the hardest element to prove. A variety of complex questions must be answered: Was the equipment faulty? Did the physician's lack of training or error cause the injury? Was the injury foreseeable under the circumstance? While a finding of negligence will result in recovery for the patient, apportion of liability can be unclear when more than one physician cares for the patient. Traditionally, physicians are not liable for the negligence of other physicians. However, the answer is less clear where the patient receives services from a specialist through telemedicine in the presence of the patient's general practitioner.
Determining jurisdiction can be complicated. Telemedicine malpractice suits can potentially be filed where the patient isolated, where the physician isolated, or in a location where the physician has telemedicine contacts. States have an interest in protecting the welfare of their constituents, while the physician's state has an interest in regulating the practice of medicine. Long arm statutes can be applied to obtain jurisdiction over out-of-state individual who have sufficient contact within a state. The number of possible jurisdictions can be greatly increased by naming any of the telemedicine equipment manufacturers, distributors, or telecommunication companies to the suit.
ONUS ON PRACTITIONERS
Telepractitioners are confronted with many legal issues that our courts and legislative systems must clarify. Only recently have governing bodies begun to acknowledge the need to establish a manageable statutory framework for issues such as licensure, malpractice, and fraud and abuse. However, it is unlikely that legislative action will keep pace with telemedicine's rapid evolution. Telepractitioners and their counsel should take particular to avoid violating national and local standards.
As technology progresses and associated costs continue to fall, the possible advantages of telemedicine will grow. Most observers believe that telemedicine will play a significant role in our nation's healthcare system. Only with legislative help will telemedicine's full potential be reached.
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