TELEMEDICINE AND MALPRACTICE: CREATING UNIFORMITY AT THE NATIONAL LEVEL.

• Author: Wolf, Tyler D.

INTRODUCTION I. PROBLEMS PRESENTED BY LACK OF UNIFORMITY IN TELEMEDICINE MALPRACTICE A. Differences: Standards of Care 1. The Locality Rule vs. National Standard of Care 2. In-Person Care vs. Telemedicine Care B. Establishing the Doctor-Patient Relationship II. UNIFORMITY OF THE TELEMEDICINE STANDARD OF CARE AND ESTABLISHMENT OF THE PHYSICIAN-PATIENT RELATIONSHIP A. The Appropriate Standard of Care for Telemedicine 1. The Appropriateness of the National Reasonable-Physician Standard 2. Telemedicine vs. In-Person Care: The Propriety of Hawaii's Approach B. Uniform Determination of the Physician-Patient Relationship III. INITIATING THE CHANGES AT THE FEDERAL LEVEL A. The Commerce Clause as a Method of Creating Uniformity B. The Spending Power as a Method of Creating Uniformity CONCLUSION INTRODUCTION

Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is video-conferencing with a doctor who examines the rash remotely and makes a diagnosis. (1)

Through advances in telemedicine, the scenario described above is becoming an increasingly common occurrence, and, for many, a life-altering opportunity. (2) Yet many legal uncertainties exist in the realm of telemedicine, particularly in regard to medical malpractice. (3) Are doctors held to the same standard of care as they would be in traditional medicine? What standard of care should a court look to when a doctor, practicing over state borders via telemedicine, finds himself enmeshed in a malpractice suit? When is the physician-patient relationship established for the purpose of determining malpractice liability? These uncertainties create potential barriers to the widespread adoption of telemedicine services. (4) If these barriers are to be overcome, legislative action must establish uniformity and certainty. (5)

Telemedicine has become the answer to that desperate question of where to seek medical consultation and care, a question that has long plagued rural American communities. (6) Through telemedicine, doctors are able to virtually see patients "face-to-face" using video communication systems. (7) Healthcare professionals can monitor high-risk patients' health parameters over long distances, diminishing the need to travel for routine testing. (8) In short, telemedicine presents the United States with a number of benefits, from reducing the costs associated with traditional medical services, (9) to providing increased access to medical services in underserved communities. (10)

Despite the promising potential of telemedicine, the American health system has been relatively slow to adopt this emerging technology, though the utilization of telemedicine services increased in recent years. (11) One of the reasons for this slow uptake is the traditional lack of healthcare coverage for a broad range of telemedicine services. (12) This barrier gradually dissipated over the last decade as coverage expanded. (13) As the usage of telemedicine increases, (14) the legal uncertainties that characterize telemedicine malpractice should be resolved in order to attract the greatest number of skilled medical professionals. (15) Without legal certainty, or by the adoption of overly plaintiff-friendly precedent and legislation, these practitioners may be disincentivized from participating. (16)

This Note argues for uniformity in the physicians' standards of care for the purpose of determining malpractice liability, arguing for an approach that holds doctors practicing telemedicine to a national standard that considers the differences between virtual and in-person care. This Note additionally argues that the factors which establish the physician-patient relationship for the purpose of determining telemedicine malpractice liability should be clearly delineated through legislation. Part I will lay out the elements that plaintiffs must establish in a medical malpractice case, identify the major differences in how jurisdictions determine the appropriate standard of care, and discuss differences regarding the establishment of the physician-patient relationship for malpractice cases. Part I will also address the negative consequences of the lack of uniformity regarding telemedicine. Part II will argue for uniformity and clarity, proposing that Congress should enact legislation which establishes or encourages an appropriate telemedicine standard of care and clarifies the formation of the physician-patient relationship in such circumstances. Part III will address several avenues of federal action that could institute the desired changes to telemedicine malpractice standards, balancing them against each other to determine the most practical approach.

1. PROBLEMS PRESENTED BY LACK OF UNIFORMITY IN TELEMEDICINE MALPRACTICE

   While the application of malpractice standards differs in subtle ways from jurisdiction to jurisdiction, there are generally four components to a malpractice claim: (1) the defendant medical practitioner owed a duty of care to the plaintiff; (2) the practitioner breached his or her duty by deviating from the standard of care; (3) the breach caused recoverable damages to the plaintiff; and (4) there was a causal relationship between the breach and injury. (17) Beyond these four components, most jurisdictions recognize that there must be an established doctor-patient relationship for there to be a duty of care owed to a patient. (18) In terms of relevancy to telemedicine malpractice, differences in establishing the relevant standard of care and how jurisdictions recognize the establishment of a doctor-patient relationship are vitally important.

   This Part first explores the differences in how jurisdictions establish the standard of care for the practice of telemedicine, and how the existence of these differences is detrimental to the public policy goal of increased access to medical care. Then this Part highlights the relative lack of consensus and clarity in how the doctor-patient relationship is formed in certain situations and the problem this poses.

   1. Differences: Standards of Care

      No matter the jurisdiction, in order for a plaintiff in a medical malpractice case to be successful, he or she must establish that the defendant-physician deviated from a specific standard of care. (19) This is typically accomplished by bringing in an expert witness to testify to the court about what that standard was and how it was breached. (20) Generally, the standard of care differs from one medical specialty to another, (21) regardless of whether the physician provided care on-site or remotely. (22) A major point of concern for the purposes of this Note is the disparity in how jurisdictions establish the standard of care within whatever specialty is being practiced.

      1. The Locality Rule vs. National Standard of Care

         There are several overarching ways that jurisdictions establish the standard of care of a physician: either the standard of care is set at a local level, based on what standard a physician practicing medicine in that locality would be held to, or it is set at a national standard within a particular specialty. (23) The locality rule "requires that an expert testifying be from the defendant's same community and compare the actions of a physician to the applicable standard in the community or locality in which healthcare services are provided." (24) On the other hand, the national standard of care requires the physician to provide a patient with "care comparable to the care provided to patients anywhere in the United States, regardless of the skill and knowledge of the particular professional and the area in which the care is provided." (25)

         Currently, courts in most jurisdictions recognize a national standard of care, though several states adhere to some vestige of the locality rule. (26) The state courts that recognize the locality rule generally cite the desire to protect doctors who practice in rural communities. (27) Rural physicians are assumed to lack the same access and knowledge as doctors practicing in major metropolitan areas. (28) As the locality rule fell into disfavor, (29) some states that maintain the rule adjusted it to fit more readily into the modern medical landscape, (30) while others left it largely untouched. (31)

         The national standard of care and the locality rule represent one of two variables used to determine the standard of care in a jurisdiction. (32) The other variable, dubbed by one scholar as the "means of comparison variable," (33) refers to the way in which the conduct of the defendant-physician in a malpractice case is compared to that of other physicians. (34) The traditional "custom-based" standard compares a particular physician's treatment to the customary medical treatment when determining whether the physician acted within the bounds of "industry norms." (35) Many states have diverged from using the custom-based means of comparison and, instead, utilize the reasonable-physician standard. (36) This standard considers whether the defendant-physician acted as a reasonable physician would have under similar circumstances. (37)

         In terms of the usage of telemedicine services, determining the standard of care is of vital importance for the treating physician. (38) Differences in the standard of care can be problematic for physicians who use telemedicine services to provide care outside of the state in which they practice. (39) Such differences could burden physicians by forcing them to learn and follow numerous standards of care, potentially to the point where they must familiarize themselves with subtle nuances in the standards present in specific...