Elizabeth Syer is published in ALM's Medical Malpractice Law & Strategy
The Future of Medical Malpractice Claims In a 'Tele-World'
By Elizabeth A. Syer
Imagine this: You are lying in a hospital bed, hearing the soothing sounds of your doctor counting you numerically backward toward sleep. Only, your doctor is 1500 miles away at a major medical center, and you are five miles away from home with a robot resembling Star Wars' R2-D2 hovering over you. Does this sound light-years away? Think again. Amazingly, through the advances allowed by telemedicine, it is now happening in the medical world, and on a more regular basis.
So what happens when something goes wrong during the treatment, through robotic, electronic or human malfunction? Due to its evolving nature, there is a distinct lack of appellate authority regarding telemedicine mishaps. However, the case law involving cross-state medical care does reveal how the courts might handle these sorts of cases.
A Changing World
Tele-medicine, according to the World Health Organization (WHO), is defined as, "The delivery of healthcare services, where distance is a critical factor, by all healthcare professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of healthcare providers, all in the interests of advancing the health of individuals and their communities."
Often, people living in remote areas benefit from telemedicine because they can access specialized medical services that were previously out of reach. Telemedicine is also currently being used in a number of correctional facilities across the country, to lower the costs of specialist visits and to provide comprehensive medical and follow-up care to those in need.
Each of the telemedicine specialties uses specifically designed instruments in order to complete their tasks remotely. Examples abound. "NightHawk," a tele-radiology service, is used in some health care facilities when radiologists are either not available — perhaps late at night or on a weekend — or when a specialist is needed to review certain critical films. Films are sent electronically to a radiologist by the hospital or provider and an interpretation of the films is sent back in a quick turn-around time. Sometimes radiologists in other parts of the United States review these films, and sometimes they are interpreted by radiologists in other countries. Like tele-radiology, tele-pathology allows rural hospitals or clinics to send pathology slides to regional medical centers or specialty centers for readings. Tele-psychiatry uses video conferencing to provide patients with psychiatric services in underserved areas or remote locations.
Tele-surgery, sometimes referred to as tele-robotic surgery, involves the use of robotic "hands" to perform intricate procedures on patients. There are already a number of medical centers offering specialty certificates and degrees in telemedicine. Currently, many of the procedures involve surgeons located in the same hospital or location as the patient. Use of tele-robotic surgery has been touted as being less invasive then traditional surgery, and as being able to accomplish more complicated procedures than laparoscopic techniques. However, as this field of medicine evolves, tele-surgery is increasingly being performed by doctors in one location on patients in another. (As the practice of tele-surgery advances, so will the technology that enables it. For instance, developments have recently been made in enhancing robotic surgery so that a surgeon can actually feel the pressure being exerted by the surgical robot. This system is currently undergoing software and durability trials and is expected to enter clinical trials in two years.)
As with a license to practice law, a license to practice medicine generally is invalid once a physician crosses a state line. Thus, licensing complications can ensue when a telemedicine procedure is performed in one state by a physician located in another. And the implications for the medical practitioner can be both criminal and civil.
Some states have yet to address these licensing issues, instead continuing simply to preclude the practice of medicine without a license issued within the state.
Other states, including Alabama, Minnesota and Ohio, have taken a more modern approach. Ohio, for example, specifically enacted a law to address the licensing issues in telemedicine, defining it as the "practice of medicine in this state through the use of any communication, including oral, written, or electronic communication, by a physician located outside this state." O.R.C. § 4731.296. Should a physician's practice fall within this definition, a tele-medicine certificate must be obtained from the state. The certificate requires, inter alia, that the physician have an unrestricted license to practice medicine in another state that requires at least 50 hours of continuing medical education (CME) every two years. Alabama law also allows for a special purpose license to practice medicine across state lines. Ala. Admin. Code r. 540-X-16-.02 (7). However, Alabama does allow for the practice of medicine across state lines without the special-purpose license if the practice is "irregular or infrequent." Ala. Admin. Code r. 540-X-16-.02. "Irregular or Infrequent" is specifically defined by the statute as occurrences that take place less than ten times per year, involve fewer than ten patients per year or take up less than 1% of the physician's practice. Ala. Admin. Code r. 540-X-16-.02 (2).
Some states, including West Virginia, Arkansas, Colorado, Connecticut and Georgia, specifically and generally address telemedicine, its defined frequency and prohibitions against practicing without each states' particular license. Georgia, for example, prohibits a physician who is physically located in another state or foreign country from using telecommunication techniques to perform any act that is part of a patient's care. O.C.G.A. § 43-34-31. This prohibition includes the acts of initiating radiological procedures or preparing pathology materials. However, Georgia does make an exception for a physician who provides consultation services at the request of a physician licensed in that state. O.C.G.A. § 43-34-31 (b). Arkansas addresses the requirement for state licensure in instances of diagnostic or treatment services to patients within the state of Arkansas, and also addresses irregular and regular consultations with a physician who is licensed to practice medicine within the state. A.C.A. § 17-95-206. Colorado, on the other hand, specifically defines the "practice of medicine" to include the delivery of telemedicine. C.R.S. § 12-36-106. "Tele-medicine" is defined by the Colorado Medical Practice Act as the "delivery of medical services and any diagnosis, consultation, or treatment using interactive audio, interactive video, or interactive data communication." C.R.S. 12-36-102.5. In accordance with the statute, should a physician who is not licensed in Colorado practice telemedicine within the state, he or she will be deemed to be practicing medicine in violation of the Colorado Medical Practice Act. See § C.R.S. 12-36-106.
Criminal issues for physicians practicing telemedicine who do not have a license in the state in which the patient is located are being reported with more frequency, often in cases where the practitioner has prescribed medication to a patient over the Internet. In such cases, doctors are forced to defend against criminal charges in states in which they may never have stepped foot.
Should you find yourself defending a physician who practiced telemedicine across state lines, your first inquiry should be to ascertain where the physician is licensed; is it where the physician performed the procedure, where the patient is located, or in both states? Special attention should be paid to each state's definition of the "practice of medicine." In addition, a review of the physician's professional liability insurance policy should be conducted, to see if the practice of telemedicine is specifically defined and/or excluded from coverage, and whether any potential criminal action for practicing without a license will be covered (e.g., does the policy preclude from coverage an intentional criminal act?).
The question of which state has jurisdiction in interstate telemedicine cases still is in the development phase. With the exception of criminal cases involving charges against a physician for practicing without a license, there is a distinct lack of appellate case law regarding jurisdictional issues in these types of medical malpractice claims.
In 2007, in the matter of Hageseth v. The Superior Court of San Mateo County, 150 Cal. App. 4th 1399, a California state appellate court addressed a felony criminal action filed against a physician for practicing medicine without a license when he prescribed medication over the Internet from within his licensing state to a patient located in California. When the patient later committed suicide, he was found to have not only alcohol in his system, but also the anti-depressant the defendant doctor had prescribed. At the trial level, the doctor unsuccessfully sought a dismissal, arguing, inter alia, that California's courts lacked jurisdiction because the alleged criminal conduct occurred outside of that state. On appeal, the physician argued that as he was not a resident of California and had never been in the state, he was not subject to jurisdiction in California. Further, he claimed that there were two separate acts that took place in his transaction with the deceased patient. The first act — his prescription of medication — involved the "practice of medicine," and it took place outside of California. The second act — the filling of the prescription — took place in California, but it involved the pharmacy there, not him. According to the physician, as each act had separate licensing requirements, his act of prescribing the medication ended after he wrote the prescription. The court disregarded the physician's two-act argument, finding that, in accordance with California law, the crime was "consummated" within the state and thus whether the physician was ever physically in the state was of no consequence. The appellate court concluded that, in accordance with its extraterritorial criminal jurisdictional laws, the detrimental effect of the physician's actions was felt in California; therefore the physician was subject to jurisdiction in California.
With regard to civil actions, a foreign state court's jurisdictional arm could be extended over an out-of-state physician in accordance with a "minimum contacts" argument. Over the years, the "minimum contacts" analysis described in the seminal International Shoe case has continued to evolve. See International Shoe Co., v. State of Washington, 326 U.S. 310 (1945). One can anticipate a "minimum contacts" analysis to include a discussion of the number of pre- and post-care discussions and examinations, or whether the care and treatment was provided on one single occasion. Arguably, a physician could be deemed to be "availing" him- or herself of the opportunity to treat patients outside of the physician's home state, thereby purposely directing his or her actions at the state where the patient is located.
In the alternative, and taking a cue from the "detrimental effect" analysis applied in criminal cases, it is possible that state courts will begin to exercise their long-arm jurisdictional abilities based upon the foreseeability of the harm. This test would involve asking whether a defendant's conduct in relation to the forum state was such that the he or she could reasonably have foreseen being subject to suit in the forum state.
While physicians are well aware of the risks of potential malpractice suits, they may be less attuned to the additional perils they face when practicing inter-state telemedicine. Knowing the law in their licensing states is only half the battle.
As we have seen, when a medical professional practices telemedicine, licensing questions can easily develop. And when patient outcomes fall short of expectations and a medical malpractice claim is made, jurisdictional questions will surely arise: Did the alleged negligent conduct occur in the state where the physician's hands maneuvered the instrument, or where the effects of the physician's movements were felt?
As medical technology continues to evolve, producing advanced lifesaving systems and devices that permit medical care to be administered remotely, medical treatment relationships will begin to change. Inevitably, the law will change with them, but courts and legislatures will be playing catch-up for some time. For now, physicians and their legal counselors must make themselves aware of the laws of each jurisdiction involved when treatment relationships cross state lines, to include each state's license requirements. Armed with this information, they will have the best chance of minimizing the practitioner's exposure to criminal and civil liability.
Reprinted with permission from the November 2011 edition of "Medical Malpractice Law & Strategy,"© 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.