Legislating for a New Age in Medicine: Defining the Telemedicine Standard of Care to Improve Healthcare in IowaNew Article

• Author: Bradley J. Kaspar
• Pages: 839-866

Legislating for a New Age in Medicine: Defining the Telemedicine Standard of Care to Improve Healthcare in Iowa Bradley J. Kaspar  ABSTRACT: Telemedicine (also referred to as telehealth or e-health) is the use of technology to connect patients and healthcare providers from a distance, and it allows for accessible, efficient, cost-effective, and convenient healthcare. Most states, including Iowa, have not updated their laws to account for the rapid emergence of telemedicine. This leaves healthcare providers uncertain of the legal implications of using telemedicine and thus discourages its use for fear of malpractice liability. Iowa should define the standard of care for telemedicine while balancing two public policy concerns. First, it should seek to maximize the potential benefits of telemedicine, including its accessibility, efficiency, cost-effectiveness, and convenience. Second, it should seek to minimize the risks associated with telemedicine, most notably the risk of misdiagnosis when a patient forgoes an in-person examination by a physician. In legislating for this new age in medicine, Iowa should follow the approach of Hawaii and adopt a standard of care that recognizes the diagnostic disadvantage associated with telemedicine but affirms liability for physicians that fail to comply with regulatory guidelines. I. INTRODUCTION ...................................................................................... 841 II. BACKGROUND ........................................................................................ 843 A. T ELEMEDICINE D EFINED ................................................................... 844 B. T RADITIONAL M ALPRACTICE L AW .................................................... 845 C. A PPLICATION OF T RADITIONAL M ALPRACTICE L AW TO T ELEMEDICINE AND THE L EGAL U NCERTAINTIES T HAT R ESULT ......... 848 III. TELEMEDICINE STANDARD OF CARE: THEORIES AND IMPLICATIONS ..... 850  J.D. Candidate, The University of Iowa College of Law, 2014; B.B.A. & B.S., University of Wisconsin-Whitewater, 2011. I thank the members of Volumes 98 and 99 of the Iowa Law Review for their diligent and skillful work on this Note. Most of all, I thank my mother and father for their undying love, continued support, and endless inspiration. 840 IOWA LAW REVIEW [Vol. 99:839 A. D EFINITIONAL B OUNDS AND R EGULATIONS OF T ELEMEDICINE ............ 851 B. T HE C USTOM -B ASED S TANDARD V ERSUS THE R EASONABLE P HYSICIAN S TANDARD ...................................................................... 853 C. T HE L OCALITY R ULE ........................................................................ 854 D. T HE “C OMPARATIVE V ARIABLE ” ....................................................... 854 1. Approaches to the “Comparative Variable” ......................... 855 2. Public Policy Concerns .......................................................... 857 a. Benefits of Telemedicine ...................................................... 857 b. Risks of Telemedicine .......................................................... 859 1. Mitigating the Risks of Telemedicine ..................... 860 2. Accepting Risk and Limiting the Liability of Physicians to Achieve Public Policy Goals .............. 860 IV. DEFINING THE APPROPRIATE STANDARD OF CARE FOR TELEMEDICINE IN IOWA ......................................................................... 861 V. CONCLUSION ......................................................................................... 864 2014] LEGISLATING FOR A NEW AGE IN MEDICINE 841 I. INTRODUCTION Imagine a child in rural Iowa with an earache who, like many other Iowans, 1 lives in an area where it is difficult to access healthcare. 2 Traditionally, this child may need to travel a great distance—causing her to miss school and requiring her parent or guardian to take time away from work—to seek care from a physician. Technology advances, however, have provided an alternative means for this child to receive medical attention for her earache in a fast, convenient, and inexpensive manner: telemedicine. Telemedicine (also referred to as telehealth or e-health) is the use of technology to connect patients and healthcare providers from a distance. 3 With the use of telemedicine, this child may simply visit her school nurse and instantly connect with a specialist located hundreds or thousands of miles away. 4 Through videoconferencing technology, “[t]he doctor can see in the ear, diagnose an ear infection, call the pharmacy locally, and then the pharmacy delivers the medicine.” 5 While research and development have broken down technological and geographic barriers, 6 making telemedicine a viable medium for healthcare delivery, 7 there remain legal impediments—perhaps more accurately characterized as legal uncertainties—that leave healthcare providers without guidance on how to properly use this new technology and thus inhibit the expansion of telemedicine. 8 If the physician who treats that child is located in Wisconsin, does the physician need to be licensed to practice medicine in Iowa 9 Assuming that the child has health insurance, will it pay for the care 1. In 2010, the U.S. Census Bureau found that 35.98% of Iowans lived in rural areas. State Data Ctr. of Iowa, Iowa Quick Facts , IOWA.GOV, http://www.iowadatacenter.org/quickfacts (last modified Jan. 30, 2013, 2:42 PM). 2. A recent study found that one-fifth of Americans live in areas where primary care physicians are scarce. Milt Freudenheim, The Doctor Will See You Now. Please Log On. , N.Y. TIMES (May 29, 2010), http://www.nytimes.com/2010/05/30/business/30telemed.html. Providers are historically reluctant to branch out into rural areas because doing so is simply not profitable or financially sustainable. See Rural Health Care , AM. HOSP. ASS’N, http://www.aha.org/advocacy-issues/rural/index.shtml (last visited Nov. 17, 2013). 3. ALAN S. GOLDBERG & JOCELYN F. GORDON, TELEMEDICINE: EMERGING LEGAL ISSUES 1 (2d ed. 1999). This Note provides more thorough definitions of telemedicine in Part II.A. 4. Ryan Flinn, The Doctor Will Skype You Now , BLOOMBERG BUSINESSWEEK (Aug. 23, 2012), http://www.businessweek.com/articles/2012-08-23/the-doctor-will-skype-you-now. 5. Id. (quoting Jeffrey Kesler, Chief Operations Officer, Ga. P’ship for TeleHealth) (internal quotation marks omitted). 6. WORLD HEALTH ORG., TELEMEDICINE: OPPORTUNITIES AND DEVELOPMENTS IN MEMBER STATES 6 (2010), available at http://www.who.int/goe/publications/goe_telemedicine_2010.pdf. 7. See infra Part III.D.2.a. 8. Paul Spradley, Note, Telemedicine: The Law Is the Limit , 14 TUL. J. TECH. & INTELL. PROP. 307, 316–30 (2011) (exploring the legal impediments to further advances in telemedicine). 9. Iowa, along with many other states, has answered this question: doctors must obtain an Iowa medical license to practice telemedicine on Iowa patients. FED’N OF STATE MED. BDS., TELEMEDICINE OVERVIEW: BOARD-BY-BOARD APPROACH 5 (2012), available at http://www.fsmb. 842 IOWA LAW REVIEW [Vol. 99:839 she received via telemedicine 10 What risks associated with telemedicine does the physician need to disclose to the patient—or the child’s guardian in this example—before treating her 11 This Note argues that the overarching and most consequential telemedicine legal inquiry centers on malpractice liability and the underlying standard of care. 12 The uncertainty surrounding telemedicine malpractice law and the underlying standard of care creates a problem for healthcare providers who wish to implement telemedical solutions. 13 Although there are other facets to potential telemedicine malpractice claims, 14 the associated standard of care is crucial to all such claims, and the org/pdf/grpol_telemedicine_licensure.pdf. Ten states have created special licenses that allow out-of-state doctors to practice telemedicine within their states without a full medical license. Id. at 1. For an in-depth discussion of telemedicine licensure issues and examples of licensure statutes, see THOMAS WM. MAYO & TARA E. KEPLER, TELEMEDICINE: SURVEY AND ANALYSIS OF FEDERAL AND STATE LAWS 9–59 (2007). 10. While it seems illogical for health insurers to object to the use of telemedicine, given its tendency to reduce costs, reimbursement for telemedical care has become a barrier, as some insurers have deemed telemedical care not “medically necessary and appropriate.” MAYO & KEPLER, supra note 9, at 60 (internal quotation marks omitted); see also id. at 60–116 (discussing reimbursement issues and providing extensive statutory examples). 11. See GOLDBERG & GORDON, supra note 3, at 26–27. Informed consent is traditionally a separate legal issue from malpractice and was typically analyzed under battery law. MARK A. HALL ET AL., HEALTH CARE LAW AND ETHICS IN A NUTSHELL 126 (3d ed. 2011). Modern informed consent law more closely mirrors negligence claims, but informed consent remains a separate cause of action. Id. In order for providers to comply with informed consent requirements, it is generally agreed upon that patients should be advised of the risks of telemedicine before they accept it as a means of treatment. Virginia Rowthorn & Diane Hoffmann, Legal Impediments to the Diffusion of Telemedicine , 14 J. HEALTH CARE L. & POL’Y 1, 35– 36 (2011). 12. It is generally accepted that malpractice litigation does not add substantially to the cost of healthcare in the United States. See Catherine Arnst, The Truth About Malpractice Lawsuits , BLOOMBERG BUSINESSWEEK (Sept. 16, 2009), http://www.businessweek.com/magazine/ content/09_39/b4148030880703.htm. However, this does not mean that malpractice concerns do not influence healthcare providers’ decisions of whether or not to participate in a given industry. See also Rowthorn & Hoffmann, supra note 11, at 5. 13. CHRISTA M. NATOLI, CTR. FOR TELEHEALTH & E-HEALTH LAW, SUMMARY OF FINDINGS: MALPRACTICE AND TELEMEDICINE 1–3 (2009), available at http://www.ctel.org/research/...