by Lee S. Goldsmith
The author, an attorney and medical doctor, is
a partner with Goldsmith Ctorides & Rodriguez in Englewood Cliffs.
As medical practice has evolved over the last 50
years, we have seen great changes in the manner in which treatment has been rendered. The
general practitioner who was at one time the internist, obstetrician and perhaps surgeon
has limited his practice with the development of specialties. The discovery of a vast
armada of drugs and diagnostic tests has separated the patient from the physician but
enabled previously unimagined treatment to be supplied. The day when all treatment and
diagnostic tests were one-on-one has disappeared to the point that often the physician who
has makes the definitive diagnosis had no physical contact or conversation with the
affected patient. The patient may never see the radiologist who interpreted the films or
the pathologist who reviewed the specimens. There is no need for patient contact.
Concurrently, medical and state authorities have
developed more sophisticated methods of credentialing physicians so that the incompetent
and unqualified are excluded from practicing medicine. Credentialing is done not only
within societies, hospitals and locally by the state, but information is now kept
nationally in the National Practitioner Data Bank and the new American Medical Association
credentialing system. The process of credentialing is a separate issue. However, there is
a trend to national -- in addition to local -- control of the individual physician.
The New World
Telemedicine is the practice of health care
delivery, diagnosis, consultation, treatment transfer of medical data and education using
interactive audio, video or data communication.
A first scenario would be the rural 50-bed
hospital. The members of its staff may include a radiologist, a couple of family
practitioners and internists, an obstetrician/gynecologist and a surgeon. There may be a
CAT scan on premises and a mobile MRI might come to the hospital once a week or once every
other week. If a patient needed any other type of treatment or required a consultation
with a specialist that patient would have to be sent to another institution. The secondary
or tertiary medical facilities might require hours of driving or a plane ride.
Consider that instead of the trip the patient
were placed in a room with television cameras and the consultant were able to direct and
view an examination performed by the internist and evaluate the patient. A determination
could be made by this specialist as to the course of treatment and what further and
additional testing would have to be performed.
As part of this review of the patient's condition
an MRI was performed locally. CAT scans and MRIs, as well as electrocardiograms and other
tests, can be sent in a digitized format and read anywhere. If the radiologist has
questions about the interpretation of MRI, she can send the results to a neuroradiologist
for review and analysis at a medical center. That medical center could be located anywhere
in the country or the world.
Taking the process one step further, the patient
in this local hospital can travel with a medical information card that provides access to
his medical records contact with his treating physician. The records and the treating
physician could be anywhere in the world. The local general practitioner can review the
card, receive the records, and call the patient's physician, perhaps in Japan. After
consultation, the local physician can carry out his treatment based on the information
In all three instances, the specialist, the
neuroradiologist and the treating physician could be from a different state or country.
Most certainly none of the three would be on the staff of the local hospital and no one
would have had his or her credentials checked by those authorities. The state in which the
patient was located may also have had no knowledge of the physician-to-physician
However, in all probability, the patient and the
local physician would have received better information and a more complete evaluation
aiding in the diagnosis and treatment that would be rendered.
Compensation will not be a problem. Depending on
how systems were established, the consultant and neuroradiologist would submit bills for
their examinations and consultations. Indeed, California has made provisions for the
"foreign" physician to be reimbursed in accordance with medical payments, and
legislation pending in Congress would require that the Secretary of Health and Human
Services make the necessary arrangements for Medicare funding.
The economics of telemedicine also are clear.
Centrally located neuroradiologists could read and review films on a 24-hour-a-day,
seven-day-a-week basis. While a local hospital might have that MRI visit on a Saturday,
the films might not get read by the single radiologist until Monday. If emergency films
were done at two in the morning through the emergency room they could be read immediately
even if the local radiologist were not available due to a vacation or a blizzard. The cost
to the individual patient or carrier would be no greater, and by concentrating the
readings in one location, with individuals specially trained, the volume of readings
should allow for a price reduction. Considering the training and specialization of the
readers, the interpretations would be more consistent and of higher quality.
In the example of the consultant viewing the
patient through a two-way television system, the cost savings might also be great. The
patient would not have to travel to the physician, find accommodations and perhaps have
extensive treatment expenses. The diagnosis may be made more rapidly, more accurately and
treatment instituted as a result of the speed in which the diagnosis was made.
As patients, we do not realize how much of the
above is currently going on and has been going on in other forms. The telemedicine or
distant medical processes involving patient care have been going on to a greater or lesser
extent for years and are only increasing. Many of the samples taken for laboratory
analysis are sent to distant laboratories. Specimens taken for genetic testing are sent to
specific laboratories across the country. Dermatological specimens may be sent out of
state to hospitals with pathologists solely specializing in dermatopathological analysis.
The economics of scale reduce the costs for all parties involved.
As a result of the increase in telemedicine
volume and in the distances involved, states have become increasingly concerned because of
the potential problems. The states have no information or control over the consultant
physician. The states have no mechanism to review the quality of care or information about
the physician if a problem were to arise at the hospital or facilities in which the
physician was based. It would be a situation in which the physician would be practicing
medicine in a state in which he or she were not licensed.
California has attempted to solve the problem in
two ways. First, the patient has to be fully informed and consent to the process. Second,
the local practitioner is responsible for and has the ultimate authority over the care and
primary diagnosis. This scheme, however, probably not does not absolve the
"foreign" doctor of potential liability.
We have seen from case law that if a patient in
New Jersey were to visit a physician in New York for care and treatment, our courts have
consistently declined jurisdiction. There is no nexus to New Jersey since none of the
events occurred within the state. A suit would have to be brought in New York and New York
law would apply. However, telemedicine presents a different situation. Where a New Jersey
patient receives long distance advice and tests results, the out-of-state consulting
physician and laboratory both know that the information is to be used for and on a patient
in New Jersey.
In all likelihood, New Jersey courts would find
that there were sufficient contacts to allow jurisdiction over the out-of-state physician.
Therefore, that physician could be sued and a judgment rendered. However, there are
practical issues that have to be raised. Could there be the allegation against the
physician that he or she was the practicing medicine without an appropriate license?
The AMA has taken the position that the
"foreign" physician should be licensed in both the state with which there is
communication as well as the base state. The New Jersey State Board of Medical Examiners
has taken the same position and indicated that a physician practicing telemedicine must be
licensed in New Jersey. Indeed, legislation to that effect may be enacted this year.
Some states prohibit telemedicine consultations
by physicians from out of the state who are not licensed by the particular state board of
medical examiners. Certainly, if an individual physician were found to be practicing
medicine without a license, then there would be a greater likelihood that a plaintiff
would prevail, regardless of the merits of the case.
Added problems for the consultant would include
scheduling and perhaps traveling to the state to have depositions taken and the
requirement of being present at the time of trial. The consultant might ordinarily balk at
such requirements and request that if the consultation was accomplished using
telemedicine, all other proceedings be handled similarly. Obviously it would depend on the
given situation and arrangements that could made between the attorneys in the individual
There would also be the secondary effect that the
"foreign" physician would be depriving local physicians of income that they
could generate not only for themselves but for their hospitals. This loss of income would
occur if all MRIs from a given region were read by a "foreign" medical group.
There is no question that telemedicine will be a
great resource for the patient and the physician in the rural hospital. The local
physician can currently research a problem using Physicians On Line or CompuServe's access
to Paper Chase. The world of the National Library of Medicine is open and available to all
But telemedicine not only allows for lectures but
also could allow the local physician to hold a clinic for multiple patients while a
"foreign" specialist reviews the case records and discusses the problems found
in each and every patient, with the patients' awareness and ability to ask and have
The major problems to be resolved will be the
potential issues associated with the rare medical malpractice case and the legitimate
concern in the individual states' interest in protecting and safeguarding its citizens.
Copyright 1997 New Jersey Law Journal. Reprinted