CBA Technology and the Law
Forum Committee Update

Can someone in rural Kansas obtain the same medical services as someone in the heart of Chicago? Even within the confines of a major city, the health care industry is faced with ever-increasing pressure to make health care more efficient and cost-effective. Increasingly, institutions and even state governments are turning to telecommunications technologies to provide the answer to the difficult problem of efficiency and remote access.

After a slow evolution using the telephone and fax machines, we are now moving to distance education and remote electronic clinical consultation. State and federal expenditures for telemedicine and other related technologies were projected to exceed $100 million in fiscal year 1994-1995, when at least thirteen federal agencies had begun telemedicine research and demonstration programs. Some states have invested their own resources, in some cases up to $50 million, to build the necessary state-of-the-art telecommunication infrastructure.

At the primitive level, simple conversations between doctors and hospitals or other doctors and patients over the telephone was the initial step toward developing telemedicine techniques. Later, telemetry readings such as electroencephalograms and electrocardiograms led to more sophisticated image transmissions, including radiology and pathology. Now, two-way, full-motion video and interactive television can provide assistance with remote examination, diagnosis and surgical assistance. Examples of this have been seen in remote telemetry readings from astronauts in space, and many look forward to the day when doctors can perform remote robotics surgery.

This article discusses briefly four of the many issues posed by the interface of health care and telecommunications: privacy, data ownership, licensing statutes and medical malpractice.

Lawyers involved with health care issues have dealt for a long time with the difficulties of maintaining privacy while sharing information. The Privacy Act ¹ declares that the provider owns the data in the medical chart, although the patient must release them, even for administrative purposes, such as obtaining reimbursement. These requirements do not include transfer of information to another physician on site in the presence of a patient.

Whether, under the Privacy Act, a telecommunication consultation is a transfer of the file or is an onsite consultation is unresolved. Much of the law involved in areas related to telecommunications depends on the model used by those who are establishing the requirements. ²

Litigants frequently dispute data ownership; that is, who has the right to control the patient's file. Determining ownership of the patient's file becomes extremely complicated where a single telecommunication consultation may create a file in several locations. Furthermore, the availability of such data creates both the hope of new techniques to monitor quickly the spread of epidemics such as HIV, and the fear that such monitoring will result in widespread discrimination. Although current law such as the Electronic Communications Privacy Act ³ regulates interference with the transmission of such information and with its storage on servers, additional law will be required to provide adequately for the specific nature of the medical records.

Lawyers are aware of the difficulty of establishing jurisdiction for a single transmission that crosses state lines. Even where that transmission does not cross state lines, if the transmission occurs through the Internet rather than through a closed network, there is no assurance that the information transmitted does not flow outside the state and back in again before reaching its ultimate destination. Although access through telecommunications to specialists would greatly enhance the health care of rural residents, state licensing of such specialists becomes a more difficult question. For example, out-of-state physicians are exempt from local licensure requirements if they provide medical services in Colorado only occasionally. ⁴ When the practice becomes more than occasional, a Colorado physician's license would be required.

In U.S. v. Thomas, ⁵ the Sixth Circuit Court addressed jurisdictional issues concerning activities on the Internet. There, the court applied Tennessee obscenity standards to evaluate the lawfulness of Internet materials originating in California. Where telemedicine is concerned, the challenge is to determine which jurisdiction's licensing standard will control medical services provided to remote locations.

Along those lines, the Joint Commission for accreditation of Healthcare Organizations ("JCAHO") determined that a physician at a specialty hospital did not need to be credentialed in the local hospital as long as orders were entered into the local chart by the referring physician. ⁶ There is growing discussion of the appropriateness of a national license to help cope with the problem of cross durisdictional practices.

The same jurisdictional issues that have been discussed above relate to the standards and legal rules that would apply to medical malpractice liability. If a doctor in New York diagnoses a patient in rural Oklahoma through the use of interactive television and real-time videoconferencing and a misdiagnosis occurs, does the misdiagnosis occur in New York or Oklahoma, and which law applies?

Telemedicine forces health practitioners and lawyers alike to move beyond traditional health care issues to consider the implications of a practice in "cyberspace." As with other areas, health care is really at the crossroads of diverse disciplines.

NOTES

1. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 [codified as amended at 5 U.S.C. § 552(a) (1988)].

2.For a general discussion of such liability, see Berkowitz and Sprague, "Potential Theories of Legal Liability for Defective Expert Software," Managing Expert System Programs and Projects, IEEE Conference Pamphlet, Sept. 9-10, 1990.

3. 18 U.S.C. § 2510 et seq.

4.CRS § 12-36-106. This section also defines the kinds of conduct, services and activities that constitute practice of medicine in Colorado.

5. 74 F.3d 701 (6th Cir. 1996).

6. Bradham, Morgan and Dailey, "The Information Superhighway and Telemedicine: Applications, Status and Issues," 30 Wake Forest L Rev. 145, 164 (1995).

This update was written by Leslie G. Berkowitz, Denver, a practitioner in private practice, (303) 832-8520. Update editors are Gayle L. Strong, Denver, assistant general counsel for University Hospital and UCHSC, (303) 372-9152, and Letty Friesen, who practices intellectual law in Denver, (303) 488-0068.

taken from: The Colorado Lawyer/ June 1996 /Vol. 25, No. 6/19