Telemedicine Across Borders: Entrenched Issues Exposed by Covid-19

• Publication year: 2022
• Citation: Vol. 50 No. 2

Telemedicine Across Borders: Entrenched Issues Exposed by COVID-19

Richmond B. Wrinkle^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................564

II. BACKGROUND.....................................................................................567

A. Defining Telemedicine in Context..........................................567
B. Regulatory Framework of International Telemedicine...........570
C. Telemedicine and Covid-19...................................................574

III. ENTRENCHED ISSUES.........................................................................576

A. Current Global Reality..........................................................576

i. Deficiencies of the IHR and Supplemental Recommendations...........................................................577
ii. Economic, Social, and Political Turmoil.........................582

B. National Barriers to Telemedicine.........................................585

i. Incompatible Models of National Healthcare..................586
ii. The Impractical One-Size-Fits-All Solution.....................590

IV. NECESSARY SOLUTIONS.....................................................................592

A. Required Changes.................................................................592
B. Predicted Response...............................................................595

V. CONCLUSION......................................................................................597

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I. INTRODUCTION

If medical professionals from the early twentieth century stepped into a hospital today, the scene would be nearly unrecognizable. The scientific and technological breakthroughs throughout the twentieth and twenty-first centuries have resulted in monumental advances within the study and practice of medicine.¹ These breakthroughs profoundly transformed nearly all areas of medical science, research, and treatment during the twenty-first century.² These monumental advances in technology include the increased reliance on telecommunication and computer technologies, which have expanded treatment options and improved the quality of and access to medical care.³ The implementation and use of these advancements, which vary by country, depend on a number of factors, including national infrastructure, policy and governance, cultural and humanitarian considerations, the availability of medical experts, among others.⁴ However, even developed countries that are well-positioned for the widespread use of medical technology have implemented telemedicine—a tool that allows doctors to physically separate themselves from their patients while still providing adequate levels of care—only in a limited capacity.⁵ For many countries, that changed in 2019, when they were forced to reckon with a global pandemic.⁶

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In 2019, the coronavirus (COVID-19) pandemic superseded many of the factors impeding the widespread use of telemedicine by forcing medical professionals around the world to administer care remotely.⁷ Given the virulence and relatively high mortality rate of COVID-19, medical distancing (i.e., the physical separation of patients from healthcare providers) quickly became an essential method of prevention and control from the early stages of the outbreak.⁸ Forced to act quickly to reduce the impact of COVID-19, many national governments and professional medical societies developed guidelines to ensure the timely and successful implementation of remote treatment options within their own countries.⁹ However, providing telemedical treatment to patients across national borders presented significant challenges.

While COVID-19 catalyzed individual nations to quickly overcome barriers that previously restricted telemedicine as a treatment tool, telemedicine remains underdeveloped and vastly underutilized across national borders.¹⁰ This Note credits the dearth of international telemedicine to the lack of international regulations governing cross-border medical care. Despite the complex and diverging national legal framework regulating healthcare,¹¹ international healthcare regulations—especially those involving the treatment of global disease—are scant. In fact, only one international legal instrument focusing on global disease surveillance and control currently exists¹² —the

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World Health Organization's International Health Regulations ("IHR").¹³ Although the most recent revision to the IHR is more expansive than its predecessors, it is limited to surveillance and reporting in times of public health emergencies of international concern ("PHEIC").¹⁴ Cross-border treatment through remote or other means, however, is not covered by the IHR or any other internationally recognized agreement. The lack of an international regulatory framework has contributed to an entrenched siloed national approach to medical treatment, which has left practitioners—even those who eagerly seek to develop global solutions—without guidance on how to mitigate liability, decipher licensing restrictions, or finance remote treatment.¹⁵ More importantly, absent an established regulatory framework, cross-border treatment during and outside of PHEICs, like COVID-19, cannot exist.

This Note argues that international telemedicine has no footing without a more robust legal framework guiding healthcare providers, and critically analyzes some of the difficulties in establishing that framework. Part I establishes context by providing background information on telemedicine, the limited existing international regulations, and COVID-19. Applying this background, Part II analyzes the entrenched global and national issues that have inhibited telemedicine from successfully being utilized across borders. Global issues include the inadequacies of the World Health Organization's ("WHO") current binding and supplemental guidelines, as well as specific economic, social, and political turmoil usually accelerated during PHEICs. The subsection addressing national issues analyzes two competing approaches: (1) the current incompatible, siloed national approaches to healthcare, and (2) a one-size-fits-all global solution that is both impracticable and ineffective. Part III proposes solutions required to manifest change in the current telemedicine regulatory framework and predicts changes that will actually manifest following COVID-19. This Note concludes by briefly discussing the vital role that telemedicine will play in the future of global healthcare and anticipating future threats if changes to international telemedicine regulations are not made.

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II. BACKGROUND

A. Defining Telemedicine in Context

Because telemedicine was still a largely emerging concept in medical practice and academic study prior to the COVID-19 outbreak, the full range of applications offered by telemedicine was undetermined.¹⁶ Although COVID-19 catalyzed the use of telemedicine in national medical practice, the accelerated and widespread adoption of telemedicine during the COVID-19 pandemic resulted in a similarly incomplete inventory of telemedical applications.¹⁷ The sudden, erratic growth and novel uses of telemedicine made implementing a universal definition of telemedicine difficult to achieve. Therefore, it is necessary to establish a working definition of telemedicine before discussing its regulatory framework and connection to COVID-19.

Defining telemedicine requires a brief examination of the concept's origin and historical development. Telemedicine originated in 1905, when a Dutch physician and professor demonstrated the potential of electrocardiography by transmitting the sounds of a heartbeat over a distance of nearly one mile.¹⁸ Five years later, two American physicians developed the electrocardiogram, which transmitted visual cardiological reports telegraphically.¹⁹ The use of telecommunications for the purpose of medical treatment first emerged in 1925 when radio and publishing visionary Hugo Gernsback envisioned a device that allowed a doctor to diagnosis patients remotely through radio.²⁰ As innovations in radio and television expanded over the next twenty-five years, Gernsback's prediction was confirmed.

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The first reference to telemedicine in medical literature appeared in 1950, when an article described the transmission of radiologic images by telephone across a distance of twenty-four miles in Pennsylvania.²¹ Expanding this growing phenomenon, radiologists at a Canadian hospital created a teleradiology system in the 1950s, and by 1959 medical uses of video communications in the United States began to emerge.²² From there, telemedicine gained traction in the clinical, academic, and rural settings.²³ During the 1970s, United States agencies and partners expanded telemedicine through the use of cable television and satellite-based communication.²⁴ As a result, telemedicine expanded internationally.²⁵ The invention of the Internet in the 1980s further accelerated the use of telemedical treatment amongst healthcare providers.²⁶ Throughout the next twenty years, practitioners and researchers expanded the application of telemedicine to a variety of treatment contexts.²⁷ During the start of the twenty-first century, telehealth experienced extensive growth, and all signs indicate that this growth will continue.²⁸

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Telemedicine can be defined as "the remote diagnosis and treatment of patients by means of telecommunications technology."²⁹ Despite this seemingly broad definition, telemedicine is actually encapsulated within an even broader array of digital healthcare activities and services commonly referred to as "telehealth."³⁰ Telehealth "encompasses clinical health care as well as a wide range of other services, including educating patients and providers, and promoting disease awareness and wellness."³¹ Put differently, "telemedicine refers specifically to the practice of medicine via remote means," while "telehealth is...