Legal concerns lie ahead in telemedicine's path

October 20, 1993

Teleradiology's commercial prospects have improved with the growingmomentum of telemedicine, a multimedia combination of videoconferencingand remote diagnostic and therapeutic technologies. Telemedicineincludes but is not limited to the transmission of

Teleradiology's commercial prospects have improved with the growingmomentum of telemedicine, a multimedia combination of videoconferencingand remote diagnostic and therapeutic technologies. Telemedicineincludes but is not limited to the transmission of medical images.Before the emerging field takes off, however, several thorny legaland ethical questions must be settled.

Those issues were illustrated by a hypothetical scenario presentedby radiologists Joseph Collins and William Charboneau of the MayoClinics in Scottsdale, AZ, and Rochester, MN. The doctors wereamong participants gathered at Mayo this month for a telemedicinesymposium.

SUPPOSE A RADIOLOGIST IN MINNESOTA, known for his expertise inliver alcohol ablations, guides a radiologist in Arizona throughhis first ablation procedure via a remote link. During the procedure,the patient goes into emergency cardiac arrest and the Arizonaradiologist, unnerved by this, improperly performs the ablation.

Six months later, the Minnesota radiologist is shocked to findout he has been named in a malpractice suit along with the Arizonaphysician. When asked by his attorney if he has a license to practicein Arizona, the Minnesota radiologist has to say no. Neither doeshe have hospital credentials at the Arizona hospital where theablation was performed, and there is some question as to whetherhis liability insurance, purchased in Minnesota, will cover himin Arizona.

Besides these crucial liability and licensure questions, telemedicinealso brings up administrative dilemmas such as:

  • what role should remote radiologists play in supervisingtechnologists performing imaging exams;

  • who has responsibility for assuring the quality oftransmitted images;

  • who maintains possession of the images in archive;and

  • which Medicare carrier should be billed for interstateteleradiology consultations: the transmitting facility in stateA, the interpreting radiologist in state B, or both?

Many hope that radiology will provide a model for how to solvethese problems for all of telemedicine. A committee formed bythe American College of Radiology in September will attempt toresolve liability and administrative questions and set standardsfor the practice of teleradiology.

"The technology has matured to the point that its useis becoming much more widespread," said Dr. George Kamp,the Tulsa radiologist who is chairing the ACR committee. "It'svery timely that the college get in there and set some standards."

Kamp's committee will have a first draft of standards by December.A final version will be presented to the ACR at its annual meetingin fall 1994.

Some states are already starting to take action on licensureissues related to interstate teleradiology.

Because of the increasing number of imaging studies being sentfrom Kansas to other states for interpretation, the Kansas MedicalSociety asked its medical licensing board to require that physiciansdoing primary interpretations of imaging studies performed inKansas be licensed to practice medicine in the state.

"We're going to see a lot of state review of out-of-statepractice of medicine by physicians who are able to access (thatstate's) patients via telemedicine and teleradiology," saidThomas Greeson, general counsel for the ACR.

Requiring radiologists to have multiple state licenses willdefinitely discourage the use of telemedicine, due to the bureaucratichassles and high costs of licensure, Collins said.

Collins and other participants at the Mayo symposium suggestedinstead that a national medical license limited to telemedicineconsultations be developed. The license should allow physiciansto diagnose or treat patients in another state with or withoutthe presence of another health-care professional.

Closely related to the licensure problem is that of hospitalstaff privileges: Do physicians in state A need staff privilegesat a hospital in state B if they diagnose or treat patients atthat facility using telemedicine?

The Joint Commission on Accreditation of Healthcare Organizationsdoesn't require consulting physicians to have credentials at hospitalsas long as they aren't writing orders themselves. This same stipulationmay also apply to physicians consulting via telemedicine.

The law definitely lags behind telemedicine technology whenit comes to determining malpractice liability, said Jill Beed,legal counsel for the Mayo Clinic. The key liability questionis whether a remote physician is subject to the jurisdiction ofanother state.

Also unclear is whether malpractice insurance purchased inone state will cover physicians determined to be practicing medicinein another state. For now, health-care providers practicing interstatetelemedicine should consult with their insurance carriers to ensurethey have proper coverage, according to Greeson.

For both of these issues, determining where the practice ofmedicine is actually taking place--with the patient or with theconsulting physician--is crucial. State courts have applied differentapproaches to this question, and the outcome is often fact-specific,Greeson said. The ambiguous nature of the law is a definite causefor concern among health-care providers.

"If a doctor is determined to be practicing medicine inanother state without a medical license in that state, that'sa criminal charge," Collins said. "So we obviously viewthis as a very serious issue."

In addition to conforming to legal statutes, telemedicine providersmust make sure they adhere to ethical guidelines ensuring qualitypatient care.

For instance, the ACR rules of ethics state that radiologistsshould regularly interpret images only when they reasonably participatein supervising the quality of medical imaging, utilization reviewand policy matters affecting quality of care.

Complying with these rules could pose problems when a remoteradiologist is providing primary interpretation services. Howdoes a radiologist in California, for instance, ensure the qualityof images produced in Colorado?

"It's clear that the ACR needs to set high standards (forteleradiology) because no one else will do it," Kamp said."We have to be the patient's advocate."