I have a few attorney colleagues who when asked search Westlaw for cases dealing with telepathology. To date, there is no case law on the matter. There are a few cases dealing with telephone consults and the like in terms of "patient-physician" relationship, but not directly for telepathology.
This recent post from the Virginia Law Weekly touches on the issues and the problems to be solved for widespread adoption with appropriate licensure, regulation, credentialing and reimbursement.
On Monday, the J.B. Moore Society for International Law sponsored a talk by Gil Segal, a visiting law professor and director of the Center for Health Law and Bioethics at Ono Academic College in Israel. Segal, who has both an M.D. and an LL.B. from Tel Aviv University, spoke about the promise of telemedicine and the legal issues it entails.
Telemedicine is the process by which doctors in one location can treat patients in another, aided by a fast internet connection and specialized equipment. It can be as simple as digital transmission of an X-ray for interpretation by a faraway expert, or as frighteningly complex as a surgeon cutting open a patient halfway around the world using a virtual interface to control a multi-million-dollar robot.
As Segal explained, the range of areas that can benefit from the application of telemedicine is broad, from radiology and pathology to psychiatry. Worldwide, only 20 to 50 percent of people live in or near major cities, where medical expertise tends to be clustered. At best, it is expensive to transport patients to see doctors, especially when one of special skill is required. At worst it can be impossible.
“When you’re in Alaska, with four feet of snow on the ground, who is going to read your X-ray?” he asked. “Or what about delivering psychiatric treatment to patients in prison? I don’t want to be there. We’ve all seen Silence of the Lambs.”
According to Segal, several areas are ready to take off. Technology has progressed to the point where a surgeon in New York operating on a patient in France experiences only a 200millisecond delay in transmitting his movements. He sees at resolutions unattainable with human eyes, and the scalpel moves with a steadiness inimitable by his own hand. Given these impressive prospects, one might expect their next procedure to be performed by the best doctor available, wherever he or she may be. As usual, though, there is one final barrier.
“The law,” said Segal, “is the single biggest thing standing in the way of the promise of telemedicine.”
Indeed, legal issues seem to plague the nascent field at every turn. How do you establish a worldwide standard of care for practitioners? Can you sue the internet company if the connection drops in the middle of your carotid endarterectomy? What are the proper jurisdiction and choice of law rules when the doctor is in Ohio, the patient is in Cambodia, the computers are in the Cayman Islands, and the medical corporation that organized it all is in New York?
The law is actually starting to answer some of these questions, if slowly. The well-developed areas, such as jurisdiction, are easier. The contacts test in International Shoe can be applied to any party that may face liability. Courts seem to have little issue with the use of forum selection clauses in agreements for treatment. Informed consent, though obviously more complicated, retains its familiar outlines. But areas where there is still little consensus in traditional medicine present larger problems. The two most contentious are licensure and reimbursement.
Typically, explained Segal, physicians must be licensed in each state in which they practice. There are no national standards, and practicing without a license is a criminal offense. There are some exceptions, made for consultations or limited work performed by famously skilled practitioners, and a small number of states do recognize each other’s licensing credentials. Nonetheless, systems of reciprocity and endorsement are patchwork at best and are almost nonexistent on the international level. For a tele-doc to obtain the proper certification in all 50 states, let alone the rest of the world, it would be immensely time-consuming and costly, and even a single jurisdiction normally takes too long for the process to work on an ad hoc basis.
Segal pointed out that there have been some attempts to simplify things by establishing a special license for telemedicine as opposed to medicine generally, or to exempt doctors working in such a capacity from laws prohibiting the unauthorized practice of medicine. Authorities are understandably wary of both. The most promising prospect is for the federal government to establish nationwide standards, but doing so will take time.
Even if doctors are licensed, however, they still have to get paid. Insurance companies like things simple, and because of the legal uncertainties discussed above, few are willing to shell out for the services of a far distant dermatologist, even when they agree that you should really have that rash looked at. Things are even worse when the government is asked to foot the bill.
“Medicare and Medicaid don’t want to pay for any of this stuff,” Segal complains, “even when it will save them money. Medicaid spends $51 million a year transporting patients to see doctors, but they won’t pay for a $100 tele-consultation.”
Most schemes, public and private, will only reimburse patients who live in rural areas, but the definition of “rural” is shockingly narrow and changes from agency to agency and from company to company.
Despite all these hurdles, Segal remains optimistic. The gains for society are obvious, and as awareness of the possibilities grows, demand will provide a strong impetus for progress in the legal and regulatory spheres. Telemedicine will become commonplace; it’s just a matter of when.
“When you guys become legislators,” he quipped, “fix some of this stuff.”