Implementing Telemedicine Nationwide: Analyzing the Legal Issues
Granade, Phyllis F., Sanders, Jay H., Defense Counsel Journal
Now practicing with Kilpatrick & Cody in its Atlanta, Phyllis F. Granade prepared th article when she was Legal Consultant to the Medical College of Georgia Telemedicine Center. She has written on telemedicine for the Western Governors' association and has been published in Telemedicine Journal. She is a graduate of the University of Georgia and the University of South Carolina Law School.
Co-author Jay H. Sanders is Executive Director of the Medical College of George Telemedicine Center, where he is a professor of medicine and surgery. He is a prominent scholar in the field of telemedicine and health care technology.
TELEMEDICINE is the use of telecommunications technology to provide health care services to patients who are distant from a physician or other health care provider. While this may include the simple use of a telephone or fax machine, it is more frequently thought of as the use of the high tech--audio-visual equipment, electronic stethoscopes, high resolution cameras, etc.--linked by fiber optic cables between physicians and remote patients. Telemedicine now brings specialized, more affordable health care to underserved areas. In the near future, it will benefit society at large. At least 35 five states currently have telemedicine projects underway, and business within the private sector is burgeoning.(1) However, there are a number of legal impediments to implementing telemedicine on an interstate basis.
The very nature of telemedicine lends itself to interstate usage, and in this manner specialists from across the nation provide advice to distant patients and their physicians. Because of the innovative nature of telemedicine, different in many ways from the traditional practice of medicine, new legal questions must be answered.
Malpractice concerns are foremost to many telemedicine practitioners; they worry about their liability for advice rendered via telemedicine. These practitioners need to know the status of their relationship with these distant patients. Does the telemedicine practitioner form a physician-patient relationship with these patients that might provide grounds for a malpractice claim? Or does the patient's local physician retain complete control, as well as responsibility and potential liability, for the diagnosis and treatment of the patient?
Because of the "cutting edge" nature of telemedicine, there are no cases directly on point at the present time. Instead, one must look at case law applicable to telemedicine by analogy.
The primary question to ask when any malpractice consideration arises is whether the physician and the patient established a physician-patient relationship. The existence of that relationship establishes a legal tie between the physician and patient. In effect, the patient has contracted with the physician to provide health care services. No written contract is necessary. The physician in turn owes the patient a duty of due care, and this duty entails that the physician must diagnose or treat the patient with the skill and care the patient would expect from his physician.
The existence of a physician-patient relationship determines, whether a person receiving medical treatment can bring suit against the physician. If there is no relationship, then there is no duty. Courts continue to emphasize the necessity for the relationship to be established before malpractice can occur.(2) Without an agreement, written or implied, to provide services there is no relationship.
To determine if the physician's treatment meets the legal standard of skill and expertise required, the physician's diagnosis and treatment are compared to the course of treatment another physician would provide. The old "community standard" is not the universal standard anymore, and many jurisdictions apply a national standard" of medical skill and knowledge.(3) The premise of the "national standard" is that all medical doctors throughout the United States should possess like skills and medical knowledge within their fields of practice. …