Interstate licensing raises questions in telemedicine
November 1, 1997 3 minutes read
Interstate licensing raises questions in telemedicine
Trapped between two states’ laws
Telemedicine also muddies the issues concerning physician licensing to practice in different states. Although all states require that doctors be licensed to practice in that state before they provide care, there is no uniform definition as to what it means to practice medicine. In some states, it seems clear that a long-distance consultation by video hookup would constitute practicing medi-cine in the distant state. In others, probably not.
"In New York, you could be in trouble if you tell someone to eat chicken soup and you don’t have a license to practice there," says Katherine Tange-duPré, project consultant for Aon Health-care Alliance in Brentwood, TN. "In other states, you’re fine as long as your consultation has been requested by another physician licensed to practice there."
The American Society for Healthcare Risk Management’s statement on telemedicine says, "It is very likely that a physician who merely consults with another physician across state lines is violating state licensing regulations even though the physician has never met the patient and a traditional’ patient-physician relationship may not exist. In addition, a licensed physician who consults with a non-licensed physician may be violating state laws by allowing the out-of-state physician to consult on the case. This may lead to substantial fines and possible criminal charges."
Those interstate issues already arise with low-tech interactions, says John McCauley, JD, executive director of risk and insurance management at Vanderbilt University in Nashville, TN. He says risk managers should consider the problems they already encounter whendealing with parties outside their home state and realize how much more often that will happen with telemedicine.
"It’s enough of a difficult issue when you’re dealing with a pathology specimen that was mailed in, and your doctor called back with an opinion," McCauley says. "You still can run into a lot of confusing issues about what laws apply even without using telemedicine. But the more you use telemedicine, the more you will have interactions beyond your county and state lines. So I expect those issues to arise a lot more often."
McCauley recently faced one of those problems when an Ohio physician, seeking a second opinion, sent a pathology specimen to a Vanderbilt pathologist in Tennessee. The communication was between the physicians, with no contact with the patient, but the Vanderbilt physician was included in a subsequent malpractice lawsuit. After the Tennessee institution was named in the suit, McCauley found there were many questions about how to defend the case. Which state laws applied? Was there a physician/patient relationship?
"We wondered if the Ohio court even had jurisdiction over the physician here, but I found out that they would. We also wanted to argue that no physician/patient relationship existed because we only dealt with the Ohio physician," he recalls. "But the attorney we had in Ohio didn’t think that would work either. Since we got paid for our services, the attorney thought that we would have a relationship as far as the court was concerned. We weren’t finding much to help our defense."
The case was dismissed before McCauley was forced to resolve most of those problems, but he says it still was a harrowing example of the difficulty involved with interstate issues. Even the practical issues of hiring a lawyer in the other state and communicating across long distances can add more hassle to the typical malpractice case.
If telemedicine enables your staff to work more closely with professionals outside your community, that has the effect of exposing you to all the varied laws across the country. What does that mean if the other party is in a more litigation-friendly community than yours? Or what if the other party is in a state that has statutory caps on malpractice awards? Perhaps you will benefit from those caps even when your own state has no such limits. Or perhaps you won’t be protected by the caps, leading the plaintiff to see you as a more attractive target.
McCauley also notes that telemedicine need not cross state lines for many of these issues to arise. "Even if you’re only using telemedicine with nearby facilities, the county lines can make a difference," he says. "There certainly are some counties in Tennessee that I’d rather be sued in, and some I’d rather not be sued in."
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