CBA Technology and the
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.
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
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.
Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 [codified as amended at
5 U.S.C. § 552(a) (1988)].
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.
U.S.C. § 2510 et seq.
§ 12-36-106. This section also defines the kinds of conduct, services
and activities that constitute practice of medicine in Colorado.
F.3d 701 (6th Cir. 1996).
Morgan and Dailey, "The Information Superhighway and Telemedicine: Applications,
Status and Issues," 30 Wake Forest L Rev. 145, 164 (1995).
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.
from: The Colorado Lawyer/ June 1996
/Vol. 25, No. 6/19