The doctor will e-mail you now: physicians' use of telemedicine to treat patients over the Internet.

• Author: Rannefeld, Lisa

SYNOPSIS I. INTRODUCTION II. NEGLIGENCE ELEMENTS IN THE PRACTICE OF TRADITIONAL MEDICINE A. Formation of the Physician-Patient Relationship B. Applicable Standard of Care C. Breach of the Standard of Care D. Injury E. Reasonably Close Causal Connection Between the Breach and the Injury the Plaintiff Suffered III. PROBLEMS ASSOCIATED WITH THE PRACTICE OF TELEMEDICINE A. Equipment 1. Description of Equipment Used in Telemedicine 2. Liability for Equipment Failures and Malfunctions B. Pharmacists' Role in the Practice of Telemedicine C. Venue and Jurisdiction D. Reimbursement E. Licensure IV. NATIONAL STANDARD OF CARE A. Inconsistency of Telemedicine Laws in Texas B. Inconsistency of Telemedicine Laws in Other States C. National Standard of Care Outlined D. Benefits of the National Standard of Care 1. Equipment 2. Internet Pharmacies 3. Venue and Jurisdiction 4. Reimbursement 5. Licensure V. CONCLUSION SYNOPSIS

This article examines the problems currently associated with the practice of telemedicine and suggests that the best solution for this particular field of medicine is a national standard of care. This article also suggests that the Food and Drug Administration's (FDA) current functions are easily expandable to the telemedicine context; therefore, the agency should regulate the implementation of such a standard in the telemedicine field. This article proposes that the FDA use medical practice guidelines in developing the applicable standard. Other agencies, such as the American Medical Association (AMA) and other website alliances, could also aid the FDA in implementing this standard because of their experience in setting such guidelines for the traditional medical context. Finally, this article suggests that in implementing the national standard of care, the FDA should increase the standard of care that telephysicians, as compared to traditional physicians, owe their patients because of the risks associated with treating patients in the absence of hands-on consultations. By implementing a national standard of care, problems currently associated with telemedicine will be resolved, and physicians and patients will have more confidence in telemedicine.

1. INTRODUCTION

   Imagine obtaining a cure for your stomachache or performing a needle biopsy on your own tumor without ever seeing a physician in person. (2) Picture yourself sitting at your home computer typing in a web address, filling out a patient consultation sheet, and entering your credit card number. Imagine sending a "cyber doctor" an email regarding your symptoms and receiving a diagnosis either through live chat or corresponding email. Imagine a cyber doctor even telephoning a prescription into your local pharmacy. These situations are examples of how the technologically advanced use of "telemedicine" is a rapidly emerging concept that has the potential to change the practice of medicine and the interaction between physicians and patients forever. (3)

   "Telemedicine refers to the use of electronic communication and information technologies to deliver health care at a distance." (4) Closely related to telemedicine is "cyber medicine," which involves the provision of medical advice and treatment over the Internet. (5) For the purposes of this Article, telemedicine and cyber medicine will be collectively referred to as "telemedicine." Telemedicine allows "patients [to] communicate with physicians ('cyberdocs') through electronic mail ('email') or chat rooms, and cyber doctors then diagnose the patients' ailments and provide treatment advice." (6) Another basic example of telemedicine in use today is "communications between health care providers and their patients [through] ... audio-visual conferencing." (7) Telemedical interactions between physicians and patients have progressed over the last forty years, and with time these procedures will become increasingly influential in the treatment of patients. (8)

   Forms of telemedicine communication began in 1960, when "NASA began utilizing telemetric technologies to transmit physiological data and monitor the health of astronauts in space." (9) This technology generated the infrastructure for telemedicine, and in the "mid-1970s, NASA satellites were used in Alaska to provide a connection by which local nonphysician providers could access information and consult with a distant physician." (10) Although these initial programs were only relatively successful, telemedicine truly emerged during the information and technology boom in the mid-1990s. (11) As a result of this increase in technology, telemedicine has continually matured into a more efficient form of medical treatment than it was when it began. (12)

   Consequently, the advantages of telemedicine are extensive. (13) Telemedical communication is an easy and cost-effective means of obtaining information about a disease or an illness as well as the types of treatments that are available to patients. (14) Telemedicine allows health care providers of rural and elderly patients to "electronically monitor vital signs, verify medication compliance, and reinforce patient education." (15) Rural and elderly patients, through the use of telemedicine, obtain advanced treatments and consultations with specialists without having to travel out of the area in which they live. (16) Were it not for telemedicine, indispensable services would not be available to these particular groups of people. Furthermore, receiving medical information through the Internet provides patients the opportunity to become more active in their own health care because they are able to make more informed decisions, which in turn allows physicians more effectively to evaluate and to treat their patients. (17) As more and more physicians realize the positive impact that telemedicine has had on the treatment of patients, the use of telemedicine in the medical community as a whole will substantially increase. (18)

   Although studies "show that telemedicine is currently utilized by only twenty-five percent of the entire medical community[,] ... the use of telemedicine is predicted to rise due to factors such as increasing consumerism, changing demographics, hardware price deflation, and increasing access to the Internet." (19) Of all adults that use the Internet, studies indicate that seventy to ninety percent of them are using the Internet to find health-related information. (20) Since 1996, when CyberDocs, Inc. first went on-line, "more than 20,000 healthcare sites have developed on the Internet." (21) By the year 2010, industry experts anticipate that telemedicine will represent at least fifteen percent of all heath care expenditures in the United States alone. (22) Clearly, telemedicine is quickly becoming a trend in the practice of medicine today, and, as the benefits increase, telemedicine will continue to become a more conventional way to treat patients. (23)

   Nevertheless, the increased use of telemedicine brings forth new challenges for our legal system. (24) Courts and legislatures must begin examining questions regarding the applicable standard of care, formation of the physician-patient relationship, physician reimbursement, and venue in the telemedicine environment as compared to the manner in which these issues are dealt with in the traditional practice of medicine. (25) Unlike traditional medicine, telemedicine lacks uniform guidelines that physicians must follow when treating their patients. (26) In the absence of such standards, patients' substandard treatments can go unheeded. (27) The most effective way to manage the problems associated with telemedicine collectively is to implement a national standard of care that provides boundaries and guidelines that physicians in every state must follow in order to avoid medical liability. (28)

   This comment explains the need for consistent criteria in determining the existence of the physician-patient relationship, the different types of interactions that form this relationship, and an applicable standard of care in telemedicine. Part II addresses the five elements that a plaintiff must prove in order to establish a claim for medical negligence. (29) In order to highlight the elements of negligence that create the greatest obstacle for telemedicine, Part II emphasizes the formation of the physician-patient relationship and the applicable standard of care. (30) Part III addresses the major problems associated with the practice of telemedicine and establishes the need for a unique standardization for this type of care. (31) Part IV focuses on the absence of a consistent standard of care applicable to telemedical negligence cases in Texas and proposes the adoption of a national standard of care for telemedicine. (32) Part IV also suggests that the standard of care should be greater than for patients treated telemedically than patients treated in the traditional medical setting. (33)

2. NEGLIGENCE ELEMENTS IN THE PRACTICE OF TRADITIONAL MEDICINE

   Although some telemedicine issues are unrelated to traditional medicine, the two forms of practice overlap with regard to establishing a cause of action for medical negligence. In general, courts do not need to establish new medical negligence elements unique to telemedicine; rather, courts need to expand some of the traditional medical negligence elements (i.e., physician-patient relationship and standard or care) in terms of their rationale in telemedicine.

   In order to establish a cause of action for medical negligence, a plaintiff must prove the following four elements: "(1) a legally cognizable duty requiring the physician to conform to a certain standard of care or conduct, (2) the applicable standard of care, (3) a breach of that standard, (4) injury, and (5) a reasonably close causal connection between the breach and the injury the plaintiff suffered. (34) Courts must address the question of duty before considering the applicable standard of care. (35) Furthermore, courts use these elements to...