Telemedicine in the United State in the Perspective of Law

Telemedicine in the United State in the Perspective of Law

Source: Robert M. Brecht and Jim E. Barrett

Telemedicine has been practiced in US since the late 1950s, a few challenges or obstacle to the expension of telemedicine which some of them are being discussed at the federal and state level but some are not. The lack of reimbursement for telemedicine service, malpractice liability and the jurisdiction, licensure and credentialing are included in the policy barrier.

To get license for practicing telemedicine, Medical professionals need to get it from state as he retain the authority to issue license. A number of state have passed law restricting the practice of telemedicine by persons who are not fully licensed in the state and hence control the number of license issued. It leads to the effect of low volume of telemedicine consultation, practitioner are reluctant to incur any cost and administrative requirement associated with multiple state medical licenses.

The liability and legal jurisdiction: most malpractice rate and coverage extent vary by state and region within a state. There are significant uncertainty regarding whether malpractice policies over services provide by telemedicine, especially across multiple state lines. A malpractices lawsuit could be filed in the jurisdiction where either the physician or patient resides. A plaintiff may be able to select the venue most advantageous to the plaintiff’s suit.

Above are some example on the obstacle of development in telemedicine. Moving on, the legal issue of telemedicine. The issues are licensing, medical malpractice and standard of care, antitrust, confidentiality and privacy and reimbursement.

Licensing:
In large part to the sovereign police power held by every state under the U.S Constitution, Amendment X, to secure and regulate public health. Therefore it is under individual stated control the practice and delivery of health services. Eg. Law: Licensing regulations (Grad FP. The public health law manual, 2nd ed. Washington, DC: American Public Health association, 1990). Licensing is intended in part to protect a state’s citizen from the unlawful or unauthorized practice of medicine. As each state is essentially free to choose how and under what conditions the state will license practitioners, no two state’s licensing provisions in law or practice are the same.

Some state have already enacted law regarding telemedicine licensing, ranging from law that delegate to state medical board the authority to determine the criteria for cross-state telemedicine practice to law by which such criteria are set forth by the state legislature. For example: Chapter 5 of California’s Business and Professional Code permits the state’s medical board to develop a registration program through which physician and surgeons licensed in other state can practice medicine in California, while Texas Administrative Code requires a special purpose license, and similar legislation has been proposed in Oregon S.B. 467, 69th Leg.Reg.Sess (Or.1997) (requiring separate license to practice medicine across state line; provision in S.B. 467 are based on the Federation of State Medical Board’s Ad Hoc Committee on Telemedicine’s Model Act to Regulate the Practice of Medicine Across State Lines).

Practicing across state line is already permitted for many medical and health professionals employed with federal agencies (eg. The U.S. Veterans Administration, the Indian Health Service, the military), so long as the professional is licensed in any state. Further, for these employees, constitution law protects the federal prerogative with respect to federal employees who might otherwise be restricted from using their state license o practice in another state.

However, National licensing for non-federal professional is more limited approach. Federation of State Medical Board’s Model Telemedicine Act includes a special limited license for telemedicine purposes only, may work in place of national licensing. The special license subject the license to the medical practice act of each issuing state and to the regulatory authority of those states’ medical board. The special purpose license would be required of only those physician who “regularly engage” in the practice of medicine across state lines.

As with any model act, a state’s enactment and implementation of the model telemedicine act is entirely voluntary and subject to revision. The federal government may be the final arbiter over national telemedicine licensing. Constitutional law permits the federal government to regulate commerce that occurs between states, which in essence preclude state government from doing so. Cross-state telemedicine practice clearly, federal regulation will inevitable result in the event telemedicine practice is reimbursed under Medical and Medicaid.

Medical Malpractice:
Medical malpractice refers to professional misconduct that include an unreasonable lack of skill or failure to execute professional or fiduciary duties that are owed to a patient.

Two of the most vexing questions concerning malpractice liability when telemedicine practice transcend jurisdictional lines and whether a telemedicine encounter suffices to establish the requisite “ professional-patient” relationship on which any finding of liability must rest.

To compel a health professional to answer in court for alleged malpractice, a court must have personal jurisdiction over the health professional. Such jurisdiction may be difficult to establish based on telemedicine encounter in which the consulting or treating health professional was physically located in one state and the patient in another at the time of the encounter. Courts are reluctant to impose personal jurisdiction in part, the health professional’s systematic or continuing contact or presence in the state,

In the case of Prince v Urban, numerous telephone consultations between a California patient and her Illinois physician over the telephone, were deemed an insufficient basis to establish the California court’ jurisdiction over the physician for purpose of making the physician answerable in that court to the patient malpractice claim. The situation may be different if this Illinois physician market her service in California.

Exposure to liability also depend on whether a telemedicine encounter is sufficient to establish a professional relationship between the professional being sued for negligence and the patient claiming damage. A professional-patient relationship :arises out of consensual contract of employment.. under which the physician agrees to render treatment. Such a relationship may be establish by the referral of a patient to a consulting physician, a formal consultation between more physician regarding a patient, or contractual relationship between a patient. Eg, a physician in a hospital is on call to provide supervisory service to other physician regarding their patient. However, in the case of McKinney v Schlatter found, so long as the physician participate in the diagnosis of the patient and has an obligation to a hospital, its staff or its patient for whose benefit the physician is on-call, a professional-patient relationship is establish. It is also suggests that telemedicine encounter provide a sufficient basis to establish professional-patient relationship, including encounter that are a direct result of a referral or consultation regarding patient care, encounter that are at least as interactive as telephone conversation and encounters that involved professionals who have contractual or other obligation to provide such service in these setting. All professionals who engage in telemedicine encounters impose on them at least the same obligations arising from a professional relationship as do their non-telemedicine encounter (like normal doctor).

Standard of Care: Standard of care are used in medical malpractice negligence lawsuit to gauge whether a clinician charged with negligence conformed his or her conduct to the legal fiction of how a prudent physician would act under the same or similar set of circumstances. It generally depends on the in-court testimony of clinicians who training, skills and experience establish their expertise to express opinion on such matter.

There is no clarity with respect to the standard of care in telemedicine practice as the widespread use of communications technology to provide or support healthcare over distance is relatively new, and there has been little opportunity for the development of standard of care. Additionally, 1.no legal case has yet been put forth as sufficiently presedent-setting or influential to establish standards of care for telemedicine practice. Even, when standard of care are establish, health professionals may not always be cognizant of what those standard are or may simply choose-reasonably or unreasonably-to disregard those standard. 2.The courts of law across jurisdictions are free to adopt different standard of care, which has often resulted in different verdict for similar malpractice claims. 3. Moreover, telemedicine practice over distance and across jurisdiction suggest that the conduct of clinician who are charged with telemedicine malfunctions will be measured against national standard, rather than local, standard of care.

In a nutshell, US has its own federal law that governs the issue of telemedicine as the whole and uniform law even though states does has their own law.