Very little case law exists in the practice of telemedicine. This is changing for several reasons I think:
- Where there is the practice of medicine, there is the practice of law. Attorneys can subspecialize in this area to prosecute and defend cases involving the practice of telemedicine or "medicine at a distance".
- As telemedicine becomes an increasing source of health care, more matters involving the legal system will likely follow.
- The rules and regulations that govern telemedicine are loosely organized and subject to local, state and federal mandates that get further complicated with interstate practices of telemedicine or consultation that may be involve foreign countries.
- While some effort has been made to regulate what constitutes telemedicine and the legalities of what may constitute medical malpractice, much work remains to be done and thus is subject to broad interpretation.
Clearly issues involving the use of e-mail or the Internet for diagnosis or treatment are related but very different than teleconsultation or even primary diagnosis for that matter in pathology.
My understanding is that medical malpractice can be generally defined as substandard treatment by a physician or other heathcare professional that directly results in physical or economic damages to the patient. "Substandard" care refers to care that violates normal medical practices. Therefore, there are three factors that must be present to prove medical malpractice: liability, damages, and a direct causal link.
One can imagine scenarios involving telepathology which may violate normal medical practices. I think that most pathologists who engage in this type of practice know the uses and limitations of the technology and act accordingly. A diagnosis may have to be deferred or another opinion sought or additonal information obtained, much like we do with glass slides on a routine basis to minimize risk to our patients. Similarly, a pathologist would not render a diagnosis for a case (patient) whose biopsy he/she is not familiar with and the accompanying clinical information to make a definitive diagnosis.
While we do not know all the facts of the above case, simply diagnosing and treating, or in our case, diagnosing and affecting potential treatment or management seems a stretch without knowing more than allegedly this physician did before prescribing treatment.
As I post on this blog, most of the published data and uses for telemedicine appear to minimize risk by obtaining services more readily not locally available, rapid access to sub-specialists and improved applications for enhanced quality assurance or consultation when needed.
Whichever way this case goes, I presume we are going to see more like it but can help ourselves if we practice telemedicine much like we practice medicine.