Implementing telemedicine nationwide: analyzing the legal issues.

• Author: Granade, Phyllis F.

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.

PHYSICIAN-PATIENT RELATIONSHIP

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.

There are two important qualifications for the "national standard." First, physicians who are specialists--for example, gynecologists or orthopedic surgeons--treating a patient within the realm of their specialty are considered to possess the same degree of skill and knowledge as other specialists in that field. Second, physicians who practice a treatment or type of surgery generally believed to be outside their field of specialty should be held to the standard of knowledge and skill of physicians qualified to practice in that specialty.

For example, general practitioners are legally licensed to practice all types of medicine. If a general practitioner performs heart surgery, then that treatment and performance will be compared with cardiologists, not general practitioners. This helps to protect patients from physicians who do not have the skill, experience or knowledge necessary to perforim the duties of a physician who has specialized.

TELEMEDICINE AND THE PHYSICIAN-PATIENT RELATIONSHIP

Many telemedicine practitioners have relied on the referring physician's proximity and his relationship with the patient, hoping this would prevent privity between themselves as consultants and the patient. However, the interaction between a telemedicine consultant and a distant Patient suggests that a relationship is formed, despite the buffer of the local physician. Is the protection provided by the referring physician an adequate barrier for the prevention of a legal relationship?

In the past, the only way to consult with a distant physician about a patient's problems was by telephone. It has been established in case law that such a telephone consultation, in which the consultant never personally examines or speaks with the patient, generally does not create a sufficient tie between the consultant and the patient to form a physician-patient relationship.(4) After all, the referring physician remains the only physician with whom the patient has had any contact.

But how does this change in the telemedicine context? The answers to key issues considered by the courts in determining whether a relationship exists between a consulting physician and a patient change dramatically in a telemedicine context. The pivotal issues in telephone consultation cases usually have included: (1) whether the consulting physician and the patient ever actually saw each other; (2) whether the physician ever examined the patient; (3) whether the patient's records were ever viewed by the consultant; (4) whether the consulting physician knew the patient's name; and (5) whether the consultation was gratuitous or for a fee.(5) Where these issues favor a physician consulting with another physician by telephone, they pose difficulties in the realm of telemedicine.

An issue important in recent cases in determining whether a physician-patient relationship exists is...