MICHAEL H. COHEN, ESQ. – FEB 2014
Sixty years ago, a family with a sick child could call their doctor, and, in a couple of hours, see him or her at the front curb, emerging with the well-known “black bag.” Times have changed, but at least when it comes to convenience, what was old is new again. Telemedicine brings back the old-fashioned house call. Except now, instead of arriving at the front door, the doctor is likely to arrive as a hologram…or maybe even a robot. In its current state, the technology is limited to a two-dimensional figure on a computer screen or smartphone. But in a few years, your medical check-up could be like a visit from Princess Leia, replete with eye-popping 3D visuals from the mind-screen of R2-D2.
In its simplest terms, telemedicine is medical service provided without the physical presence of a physician. Telemedicine, or telehealth as it sometimes is more broadly known (i.e., overall healthcare and not just medical services), also has various legal definitions. For example, in some states, the legal definition includes phone consultations, while in other states the definition is limited to consultations via the Internet (through services such as Skype, for example).
Thus far, telemedicine has generally involved “synchronous” communication—the medical professional and the patient, or the patient’s local provider, interact in “real time,” much like a telephone conversation. This can pose problems when the medical professional and the patient are located in different time zones, or when network access is severely limited—in developing countries, such as Africa, for example. With asynchronous telemedicine, on the other hand, local practitioners or patients provide data whenever they can, using existing communications channels, such as text messaging. There’s no need to network the computers or coordinate across time zones, only to provide each party with access to the information via available satellite channels. At his or her convenience, the physician accesses the data, makes a diagnosis, and prescribes a course of treatment. One of the advantages of telemedicine is it can be used in rural communities where there’s a shortage of physicians (whether in primary care or specialists). This instance provides needed expertise without prohibitive expense or difficult transportation arrangements.
Debates have raged as to whether telemedicine creates a depersonalized experience for the patient or a more personalized one. Some even have referred to telemedicine as a technological extender to conventional care. Whether they like or dislike telemedicine, most analysts agree that it’s here to stay and is becoming more and more widespread.
Legal Issues and Obstacles
There are several legal obstacles to the practice of telemedicine, the main one being licensure.
Healthcare providers, including physicians, are licensed by states. Usually, their practice is governed both by the state in which they physically practice (the “home state”) and the state in which the patient is located (the “remote state”). If a California specialist in combating the effects of aging, for example, wants to provide longevity advice to patients in New York, the physician must be licensed both in California and in New York. Otherwise, New York can find the California-licensed physician guilty of practicing medicine in New York without a New York license.
Some states have attempted to solve this problem by creating a limited telemedicine license for which out-of state physicians can apply. However, this solution doesn’t exist in all states.
In other states, the licensing law allows an out-of-state physician to consult with an in-state physician regarding a shared patient. It’s important to note, this is not the same as allowing the out-of-state physician to provide medical services remotely to the in-state patient. Some states even have reciprocity for healthcare practitioners such as nurses but not for physicians.
The lack of national physician licensing places physicians in potential legal peril when they care for out-of-state patients. This is particularly difficult for physicians who wish to offer a specialty service or a second opinion regarding oncology care options.
One way telemedicine companies have tried to comply with licensing restrictions is to create a network of physicians across states. This way, when patients call an 800 number, they can be routed to a physician who is licensed in their state.
Another legal strategy is limiting the prescriptive authority of physicians in the network to refilling antibiotic prescriptions. Because of state law and federal law restrictions on prescribing drugs over the Internet, telemedicine companies often try to limit their prescription practices.
Yet a third legal strategy is to attempt to style the telemedicine service as one that doesn’t involve the provision of clinical (medical) services—but rather, as one that only offers information and education about healthcare options. The idea is to limit the actual medical diagnosis and treatment, which would trigger restrictions on the practice of medicine, and provide only guidance to help the patient decide which course of action to take.
These efforts to carve out a broad space for telemedicine in the healthcare market haven’t been widely tested within the courts.
Other Legal Issues
Another key legal issue is regulating the standard of care. Some states, such as California, adhere to a policy where the standard of care in telemedicine services must be the same as if providing the service in person. In other words, patients seen via the Internet cannot be treated any differently, or with less diligence, than if seen in person. The idea is to ensure clinicians don’t waive their duty of care merely because the patient isn’t present in person.
Health Insurance Portability and Accountability Act (HIPAA) issues also exist, since telemedicine services can involve the exchange of protected health information (PHI) over the Internet. To satisfy HIPAA concerns, providers and telemedicine companies must address relevant portions of the HIPAA Privacy Rule, as well as the Security Rule, so as to avoid unauthorized disclosures or uses of PHI.
Finally, informed consent must also be satisfied. State law may specify that providers must give patients specialized, informed consent regarding the potential risks, benefits and limitations of telemedicine practice. Failure to provide adequate, informed consent can be grounds for malpractice liability and professional discipline.
When it comes to medicine, it seems the future is always now. When it comes to telemedicine, it seems that the future looks even brighter.
Michael H. Cohen  is president of the Michael H. Cohen Law Group. He represents healthcare companies, practices and practitioners in healthcare corporate, compliance and regulatory and litigation matters. Contact the Michael H. Cohen Law Group  for business and healthcare legal and regulatory advice.
The materials above have been prepared by the Michael H. Cohen Law Group  for informational purposes only and are not legal advice or counsel. Readers should not act upon any information in this article without seeking professional legal counsel.