February 2000 Bulletin

Electronic era has opportunities, but legal complexities

By Jack Childers, MD

With the advent of widespread electronic communication networks of increasing carrying capacity, there has evolved a culture of medical information exchange, ranging from informal discussion groups, which may or may not include physicians, to organized presentation of cases to distant consultants on a scheduled basis and in real time. To the extent that physicians are involved in these enterprises, they may be subject to legal complexities that are not immediately apparent. Some of these are:

Venue. If the physician and the patient are in different states, whose laws govern the encounter? Many states do not have specific statutes; those that do usually take the position that it’s where the patient is that counts. This raises licensure questions and also the specter of "venue shopping" in case of a claim if the state in which the physician is located does not have specific laws. It is well-known that certain court districts are more "user friendly" toward plaintiffs than others, and the ability of the claimant’s lawyer to choose where to file a suit may be a significant advantage.

Licensure. If a physician-patient relationship is established, what licensure is required? There are 50 different answers to this question, depending on which state is involved. Some states require a full license, a position advocated by the American College of Radiology and the American Medical Association, while others have adopted laws creating a special limited license for such practice, as recommended by the Federation of State Medical Boards. Still other states have no laws yet, but many are considering them. There is no national standard. It should be noted that many states have exceptions, which vary from state to state. Some common exceptions include emergencies, "infrequent practice" and "collegial consultations."

Physician-patient relationship. It is not always clear at what point a physician-patient relationship has been established; this is a crucial point if a claim is filed. Again, there are 50 different answers, but some generalities may be drawn. In some states simply "holding one’s self out as a practitioner" is sufficient, including the use of "MD," "Dr" or any similar appellation. In most states, laws refer to one who "diagnoses or treats" or "attempts to diagnose or treat," leaving the definition of those words to the courts. There are situations where the physician will not have considered himself/herself to have practiced medicine, but the patient will; in most of these situations, the law seems to be on the side of the patient. Two other points in this regard: a disclaimer by the physician is likely to be a weak shield. If his or her actions constitute the practice of medicine, according to the laws of the state in question, most courts will probably rule that he or she has practiced medicine, any statement to the contrary notwithstanding. Also, failure to send a bill for services is unlikely to be an effective defense against having practiced medicine, although sending one will almost certainly establish that the physician did practice, or at least thought he did.

Malpractice coverage. This is a nonissue at the present, but is unlikely to remain one. The professional liability committee was only able to find one insurance company that asks whether applicants engage in telemedicine, and that company charges no premium if the applicants are involved in telemedicine. It has had only one affirmative response to date. However, if a physician is deemed by a court to have practiced medicine without a license, the policies of almost all insurance companies release the company from the requirement either to defend the physician, or pay any liability incurred.

Another controversy in telemedicine is the issue of reimbursement. The policy of the Health Care Financing Administration (HCFA) will likely be followed by private insurers, most of which have not developed any specific rules yet. At present HCFA, fully reimburses only for radiology services, although the Balanced Budget Act of 1997 contains a provision authorizing payment for services for patients in 1,200 rural areas, designated "health professional shortage areas." Several demonstration projects are currently underway. Some states also have begun to cover telemedicine services for Medicaid patients, spurred by the fact that the states are responsible for transportation of those patients for medical care.

Some other issues raised by the growth of telemedicine are patient privacy and security of medical records, which pose technical challenges the physician may be responsible for, but is unlikely to have the expertise to deal with; informed consent (how obtained, and by whom); and coding the encounter appropriately.

In summary, the advent of telemedicine offers opportunities for improving medical care, but also challenges and pitfalls that the physician must be aware of and guard against if he or she is to avoid unexpected problems of legal liability.

Jack Childers, MD, is a consultant for the Professional Liability Committee.

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