Telemedicine Liability: Texas and Other States Delve
into the Uncertainties of Health Care Delivery via
Advanced Communications Technology
Kip Poe*
Table of Contents
1.
INmoDUCTION •...•.............•...............•......•......••.....•......•.•....•. 682
A.
B.
ll.
What is Telemedicine?
Benefits and Present Applications
LEGAL CONCERNS
A.
B.
C.
Informed Consent
Confidentiality, Privacy, and Security
The Physician-Patient Relationship and
Standard of Care
Licensure
Venue/Jurisdiction
682
684
686
687
688
693
D.
696
E.
699
ill. CONCLUSION .•.......•.....••......•.....•.......•.•....••.............•......••...... 700
APPENDIX A
702
APPENDIX B
704
APPENDIX C
706
Propelled by the information superhighway and the
breadth of emerging computer and communication
technologies, telemedicine will change the face of
medicine and methods ofinteraction between providers
and patients. Access, quality and cost ofhealth care
may all improve, but not without the sacrifice ofsome
time-honored norms in medicalpractice. 1
* Associate General Counsel, Texas Tech University Medical Center; J.D.,
University of Texas School of Law; M.S.N., University of Texas Health Sciences
Center at Houston; B.S.N., University ofTexas at Arlington. The author would like
to thank Texas Tech School of Law student Meredith Lyons for her research
assistance in preparing this Article.
1. Patricia Kuszler, Telemedicine and Integrated Health Care Delivery: Com-
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Introduction
Telemedicine is a rapidly emerging and evolving concept in the
medical industry that increasingly poses new legal questions that could
have widespread ramifications. Telemedicine is not the practice of
medicine itself, but rather a tool that aids health care professionals in
providing medical treatment and care to patients using modem
communications technologies. Through this delivery mechanism,
health care providers can offer or support clinical practice at a distanceacross both geographic and time barriers. 2 The most common use of
telemedicine has helped provide health care to rural communities via
communications technologies including interactive audio and video
monitoring. 3 Individuals in largely rural areas far removed from hightech urban or university medical centers are now able to access a full
range of medical specialists and advanced treatment options without
having to travel out ofthe areas in which they live.4
A. What is Telemedicine?
Telemedicine refers to the use of electronic communication and
information technologies to deliver health care at a distance. National
Aeronautics and Space Administration (''NASA'') scientists first created
telemetric technologies for the space program to provide for the longdistance measurement and transmission through space ofthe astronauts'
physiological data. s The most basic examples of telemedicine in use
today include communications between health care providers and their
patients over the Internet, via e~mail or audio-visual conferencing.
Through "store and forward" technology, telemedicine images can be
digitally stored and forwarded to a distant health care provider. 6 This
pounding Malpractice Liability 25 AM. J.L. & MED. 297, 297 (1999).
2. See Robert F. Pendrak, Telemedicine and the Law, HEALTHCARE FINANCIAL
MANAGEMENT, Dec. 1996, at 46.
3. Id. at 46.
4. Id.
5. Kuzler, supra note 1, at 300.
6. Store and forward technology involves storing images (e.g., x-rays) in a computer and forwarding them to another site at a later point in time. See Daniel
McCarthy, The Virtual Health Economy: Telemedicine and the Supply ofPrimary
Care Physicians in Rural America, 21 AM. J.L. & MED. 111, 112 (1995); Derek F.
Meek, Telemedicine: How an Apple (or Another Computer) May Bring Your Doctor
Closer, 29 CUMBo L. REv. 173, 175 (1998-1999) (both discussing telemedicine's
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interaction does not occur in real time, so it is most frequently used in
the fields of radiology and pathology, because these professionals
frequently provide services at some point of time after their patient
visit; for example, an x-ray can be taken at one time and viewed later.
A more technologically advanced use oftelemedicine, which is rapidly
developing now, is the use of digital interactive or simultaneous video,
audio, and data transmission equipment.7 This technology broadcasts
a patient's examination in one location to a health care provider miles
away. Telemedical professionals can configure this interactive system
to allow the transmission of electronic signals from specially equipped
stethoscopes, sonograms, otoscopes, endoscopes, and other diagnostic
tools. 8 The most advanced systems involve controlled robotic surgical
operations, in which robots are controlled from one location to perform
surgeries in another locale. 9 In each of these uses, the medical
information is delivered through various technologies, including the
Internet, telecommunications lines (copper wire or fiberoptic), and
satellite transmissions. IO The transmission mode requires integration
and compatibility with a variety ofhardware and software components
(e.g., software that compresses radiological images for speedier
transmission or enhanced computerized imagery).ll
The term "telehealth" is often used interchangeably with
telemedicine. However, telehealth specifically refers to health-related
activities, such as continuing education for health care providers, the
administration of health care service, medical and bio-scientific
research, and public health activities. 12 Telemedicine instead refers to
ability to allow a physician in one location to view and hear patient data from miles
away).
7. See McCarthy, supra note 6, at 112; Meek, supra note 6, at 175 (describing
the benefits ofand the range ofsophistication in telemedicine, including the exchange
ofcrucial patient images and diagnostic data over two-way interactive video and audio
systems).
8. See Meek, supra note 6, at 175; McCarthy, supra note 6, at 114.
9. Meek, supra note 6, at 173.
10. Meek, supra note 6, at 173.
11. Phyllis Forrester Granade, Telemedicine-Liability and Regulatory Issues
(May 7, 1999) (unpUblished manuscript, presented at the American Health Lawyers
Association Health Information & Technology Conference).
12. See Kristin R. Jakobsen, Space-Age Medicine, Stone-Age Government: How
Medicine Reimbursement ofTelemedicine Services is Depriving the Elderly ofQuality
Medical Treatment. 8 ELDER L. J. 151, 156 (2000).
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the actual practice ofmedicine over a distance using communications
technologies.
B. Benefits and Present Applications
Texas, along with many other states that have vast and largely
inaccessible rural areas, can readily benefit from using telemedicine
technology to help treat traditionally underserved rural inhabitants.
Telemedicine improves access to expertise and advice not otherwise
available to areas lacking medical specialists. For example, the
University of North Carolina (''UNC'') provides pediatric cardiology
consultations to neonates in outlying area hospitals through
telemedicine technology.13 This avoids delays in care because the rural
hospitals no longer need to send echocardiograms to UNC and wait for
their review. 14 Previously, patients without easy access to the
university-based medical center could not benefit from such
subspecialty care. IS In addition, telemedicine's long-term effects are
projected to reveal that it is a cost-efficient manner ofproviding health
care despite the often high threshold costs associated with purchasing,
installing, and implementing the new technology.16
In Texas, the emerging importance of telemedicine is also
evident in the need to administer health care to the state's rapidly
expanding prison population. Before the infusion of telemedicine
programs into several prison systems across the country, inmates were
often transported long distances for medical treatment from a prison to
a health care facility. Using telemedicine in the prison system greatly
reduces the potential public safety risks oftransferring inmates between
facilities. 17 Health care providers can now often see inmates in
academic or private medical centers, via telemedicine technology, while
keeping the inmate within the confines of the prison facility.18 This
helps avoid costs associated with security guards, transportation, private
13. Kuszler, supra note 1, at 303. A neonate is a newborn child.
14. Kuszler, supra note 1, at 303.
15. Kuszler, supra note 1, at 303.
16. Meek, supra note 6, at 178.
17. See Christopher J. Caryl, Malpractice and Other Legal Issues Preventing the
Development ofTelemedicine, 12 J.L. & HEALTH 173, 181 (1998) (summarizing the
benefits of telemedicine within the model ofprison medicine).
18. See id.
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physician fees, inmate escapes, and possible litigation about the lack of
medical specialty care. 19
Telemedicine's ability to conquer distance in both geographical
and temporal terms also helps to break down international boundaries
by bridging health care among foreign countries. In the 1990s, NASA
inaugurated the "spacebridge" to Moscow, an international telemedicine
project.20 Russian and U.S. physicians participated in specialty
consultations in a variety of disciplines. The project also helped the
two countries coordinate their emergency medical service?1
The U.S. Department ofDefense purportedly has the largest and
most extensive international program?2 Each branch of the armed
services has separate yet related telemedicine programs designed to
facilitate each branch's "readiness requirements.,,23
In addition to providing better health care access to rural areas,
improving costs and safety in the delivery of prison health care,
facilitating health care in the U.S. armed forces, and assisting with
international healthcare efforts such as disaster relief in the wake of
earthquakes in Mexico City and Armenia,24 telemedicine also has more
local applications. Telemedicine is becoming a useful modality for providing home health care. Health care providers can use interactive
video links to enhance care for home-bound patients, thereby decreasing the need for costly on-site visits by home health providers.25
19. See R. Cunningham, Telemedicine Races Against Time to Earn Its Keep, in
TELEMEDlClNE SOURCEBOOK Vol. 49 (1995 ed.); Edwin Doty et al., Telemedicine in
the North Carolina Prison System, in MEDICINE MEETS VIRTUALREAurY 239, 239-41
(H. Sieburg, S. Weghorst, & K. Morgan eds., 1996); Caryl, supra note 17, at 181.
20. See Charles R. Doarn, et al., Applications of Telemedicine in the United
States Space Program, 4 TELEMEDlCINE J. 19, 23-26 (1998) (descnbing the Spacebridge to Moscow, which operated from September 1993 to June 1994 and involved
several hundred physicians and seventy patients in Russia and the U.S.).
21. ld.
22. See J. Rosenblum, Telemedicine: Modem Miracle or Liability Landmine (unpublished manuscript on file at the Texas Tech University Health Science Center).
23. ld.
24. See Doarn, et al., supra note 20, at 23 (explaining how satellite communications aided health organizations in logistical planning and distribution of food,
water, and medical supplies).
25. See Bill Siwicki, Home Care Market Offers Telemedicine Opportunities,
HEALTH DATA MGMT., May 1996; ilene Warner, Telemedicine in Home Health Care:
The Current Status ofPractice, HOME HEALTH CAREMGMT. & PRAC., Feb. 1998, at
62.
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Through telemedicine, health care providers can electronically monitor
vital signs, verify medication compliance, and reinforce patient
education. 26
Telemedicine has the potential to change the face ofhealth care
delivery across the globe. Yet its rapid growth creates difficult legal
obstacles in applying traditional legal principles to telemedical care??
This Article explores telemedicine's various forms and services and
considers how traditional medical negligence theories may impact or be
impacted by the delivery of health care via modem communications
technology.
II.
Legal Concerns
A fair degree of legal uncertainty surrounds telemedicine
liability. Combining rapidly changing communications technology with
the complexities of medical practice requires a new look at some old
legal issues. Questions regarding consent, confidentiality, the physician-patient relationship and standard of care, licensure, venue, and
jurisdiction must all be examined. For example, if a doctor in state A
makes a treatment decision for a patient in state B, and the decision
turns out to be questionable, which state's malpractice laws will
govern?28 Which state's consent laws apply? What venue is proper
and where did the alleged tort occur? How should governments and
medical organizations regulate and monitor licensing requirements
across state or international borders? Where do state and federal
regulatory agencies fit in? Should patients be told about the availability
ofteleconsults? How does distance affect documentation and followup care?
When applied to telemedical practice, the law governing these
areas becomes vague. Few legal precedents exist and legislation has
not kept pace with telemedicine's practical applications. However, for
26. See Siwicki, supra note 25; Warner, supra note 25, at 63.
27. See generally Phyllis Forrester Granade, Medical Malpractice Issues Related
to the Use ofTelemedicine-An Analysis ofthe Ways in Which Telecommunications
Affect the Principles ofMedical Malpractice. 73 N.D. L. Rev. 65 (1997) (exploring
the effects oftelemedicine on recognized legal principles in the fields ofmalpractice,
physician-patient relationships, medical standards of care, and jurisdiction-related
issues).
28. For a discussion of this and the following questions, see Trends in the
Profession, 62 TEx. BAR J. 19, 20 (1999) (describing legal uncertainties of
telemedicine).
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telemedicine to truly become an integral part ofthe health care industry,
these key legal issues must be resolved or at least sufficiently analyzed
to determine basic principles and guidelines for use.
A. Informed Consent
Obtaining a patient's fully informed consent is of utmost
importance for health care providers. This is true regardless of the
course, mechanism, or mode oftreatment. As Christopher Caryl noted
in Law & Health, a patient has a right to know about telemedicine's
risks, benefits, and limitations.29 A health care professional should
discuss with the patient any risks or limitations affecting examination,
diagnosis, or treatment involving telemedicine. 3o For example, the
patient should be informed that the telemedicine consultant is
physically in a distant location, will not perform a face-to-face physical
examination, and must rely on information provided by the patient and
anyon-site health care providers.31 It is also important to disclose any
risks beyond those concerning direct patient treatment, including
potential problems with electronic transmission, such as distortions,
delays, and the possible unauthorized interception of medical data
transmissions. 32 The patient's consent to undergo telemedical analysis
or treatment will generally be considered to extend only to the on-site
provider, the telemedicine consultant, and any assistants they deem
necessary for the patient's care. Therefore, the patient will need to give
specific permission if anyone other than the providers will be present
during the interactive examination. Specific patient consent is also
necessary ifthe patient's identity will be exposed during a later viewing
ofthe examination. 33 Permission should be obtained from the patient
to audio record, video record, or photograph the consultation. The
informed consent discussion should extend to the handling, ownership,
29. Caryl, supra note 17, at 200.
30. Caryl, supra note 17, at 200.
31. Caryl, supra note 17, at 200.
32. See 22 TEx. ADMIN. CODE § 174.10 (West 2000) (mandating informed
consent).
33. For example, medical or nursing students as well as health care providers and
technicians from other medical centers may view telemedical treatment to learn more
about telemedicine.
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and retention of the electronic medical record, including the video or
audio tapes or other stored data.
fu addition, the patient should understand the relationship
between and the distinct responsibilities of the on-site health care
providers and the telemedicine consultants. Under Texas law, the
treating physician, not the hospital or another physician involved in the
diagnosis or treatment of the patient's condition, has a duty to obtain
the patient's informed consent.34 This holding can be interpreted to
place the duty of informed consent on either the on-site physician, the
off-site telemedicine consultant physician, or both, depending on the
circumstances of examination, diagnosis, and treatment. It is probably
safest for physicians and health care providers to assume that ifthey are
responsible for decisions regarding diagnosis or treatment, then they are
similarly responsible for obtaining the patient's informed consent for
that decision. The consent to participate in telemedicine should be
documented, signed by the patient, appropriately witnessed, and
retained in the records ofboth the on-site provider and the telemedicine
consultant.
Medical professionals must also follow all of the general
principles of consent that apply to traditional medical treatments and
procedures when those treatments and procedures are provided with the
aid of telemedicine. Therefore, more than one consent form may be
necessary for telemedical procedures. This may include the standard
forms that identify the specific risks and hazards of the specific
treatment or procedure, and special forms to identify the risks,
limitations, and other matters associated with telemedicine. 35
B. Confidentiality, Privacy, and Security
Health care providers have a duty to keep patient medical
information confidential unless the patient or the law authorizes
disclosure. 36 While violations unfortunately occur even in the
traditional medical setting, telemedicine presents even greater
34. See Ritter v. Delaney, 790 S.W.2d 29,31 (Tex. App.-8an Antonio 1990, writ
denied) (holding that the operating physician is required to obtain consent of the
patient).
35. See Appendix A for an example ofa telemedicine consent form.
36. See generally TEx. Oce. CODEANN. §§ 151-165 (Vernon 2000) (providing
require-ments for regulation and licensing of physicians); see also id. §§ 159, 160
(providing information about communications between physicians and their patients
regarding reporting and confidentiality).
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challenges for safeguarding the privacy and security ofmedical records.
Telemedicine relies on computerized medical records and the electronic
transfer of patient information from one location to another, which
increases the vulnerability to unauthorized access and improper usage. 37
For example, many networks containing computerized medical records
are vuh'lerable to computer hackers. In addition, honest mistakes in the
handling of private health information may cause it to fall into the
wrong hands; for example, an improperly dialed fax number may
inadvertently transmit medical information to an incorrect 10cation.38
The statutory requirements controlling the practice of
telemedicine in Texas, as in most states, require confidentiality but do
not address how it is to be achieved.39 The federal government,
however, has recognized that patients are concerned about the amount
and types of information that could be disclosed by electronic transfer,
the Internet, and other similar mediums. The Health Insurance
O
requires the
Portability and Accountability Act (''HIP
Department of Health and Human Services (''DHHS'') to promulgate
regulations on electronic data standards and health information
privacy.41 DHHS's proposed regulations, which will become effective
in two years, aim to protect patients upon the dissemination of their
health care information.42 Among other things, these regulations
require health care providers to obtain written authorization from
patients before using or disclosing any health information.43 Health
care providers must also establish and maintain administrative and
physical safeguards to protect electronic health information.44 Entities
AA"t
37. See Caryl, supra note 17, at 182 (outlining privacy concerns regarding
telemedicine).
38. See generally Caryl, supra note 17, at 182; Ranney V. Wiesemann, On Line
or On Call? Legal and Ethical Challenges Emerging in Cybennedicine,43 ST. loUIS
U. L.J. 1119, 1137 (1999).
39. See TEx. ace. CODEANN. §§ 151, 159, 160.
40. Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.
L. No. 104-191 (1996) (codified in scattered sections of42 U.S.C.).
41. ld. §§ 261-270.
42. 65 Fed. Reg. 50,312 (2000) (to be codified at C.F.R. §§ 160, 162); 64 Fed.
Reg. 69,981 (2001) (to be codified at 45 C.F.R. §§ 161, 163, 164).
43. See 45 C.F.R. §§ 164.500-164.532 (authorizing security standards for health
information).
44. HIPAA § 1173 (authorizing standards for information transactions and data
elements).
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covered by these regulations include health care providers who transmit
health infonnation electronically, health plans, and health care
clearinghouses.45 Protected health infonnation includes identifiable
electronic infonnation either transmitted or maintained in a computer.46
Basically, if the infonnation includes any components that could be
used to identify a patient, it is covered by the ACt. 47
The criteria in the proposed DHHS regulations are numerous
and extremely detailed and should be thoroughly reviewed by medical
providers prior to any disclosure ofcovered infonnation. The following
points specifically apply to telemedicine and should especially be
noted: 48
1) An individual patient has the right to see a description of
what a health care organization is going to do with the
patient's identifiable health infonnation.
2) The patient has the right to see his health record, with
limited exceptions.
3) The patient has the right to see a record when his records
were disclosed for purposes other than treatment,
payment, or health care operations.
4) Any use or disclosure of individual infonnation must be
the minimum necessary to accomplish its purpose.
5) A covered entity may use or disclose infonnation only:
o
for treatment, payment, and health care operations,
o
as explicitly authorized by the individual,
o
as otherwise permitted in the regulation, and
o
as required by federal or state law.
6) If a medical organization uses or discloses infonnation for
treatment, payment, or health care operations, it must
45. [d. § 262.
46. See 42 U.S.C.A. § 299a-l (providing for confidentiality of data); id.
§ 1320d-l (setting forth general requirements for adoption ofstandards and applying
those standards to health care providers who transmit health information in electronic
form).
47. 65 Fed. Reg. 50,311 (Aug. 17,2000) (to be codified at 45 C.F.R §§ 160,
162); 64 Fed. Reg. 69,981 (Dec. 15, 1999) (to be codified at 45 C.F.R §§ 161, 163,
164).
48. The following list is derived from Joan Kumekawa, Telehealth Update,
Office for the Advancement of Telehealth, at http://telehealth.hrsa.gov/pubs/
privac.htm (Feb. 18, 2000).
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inform the patient in advance and allow for the patient's
objections for use and disclosure.
7) The organization must have administrative procedures in
place to protect health information and the rights of
patients with regard to that information. These include
adopting both policies and procedures for handling
information, and administrative systems to protect
information appropriate to the nature and scope of the
business. Specifically, the entity would be required to:
• designate a privacy official,
• train its workforce about confidentiality and security
measures,
• implement safeguards to protect health information
from intentional or accidental misuse,
• provide a means for patients to lodge complaints and
maintain a record of any complaints about
confidentiality problems, and
• develop a system for imposing sanctions on members
of the workforce and business partners who violate
the entity's policies.
In addition to electronic medical records, privacy questions
arise with regard to videotaping and storing electronic imagespractices common in telemedicine. According to the Interagency
Committee for Medical Records of the General Services
Administration: 49
•
•
The patient must provide written consent for the
taping (unless the consultation is for the
documentation of abuse or neglect).
Videotapes are not part of the medical record and
should be erased after standard documentation ofcare
is complete (written or electronic). Unless the
videotape is required for a specified interval for a
49. The Interagency Committee for Medical Records of the General Services
Administration is an independent agency ofthe United States government responsible
for the management of property. See id. The following list is also compiled from
Kumekawa's article. See id.
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specific reason (e.g., documentation ofprocedures in
preparation for board certification or documentation
of abuse/neglect).
The guidelines do not apply to electronic images such
as radiographs and digital photos for which
documentation processes are already in place.
Exceptions to the prohibition against retaining
videotapes may be permitted for cases with education
value.
The methods used by medical organizations to safeguard
electronic records will undoubtedly include encryption, secure
transmission protocols, and firewalls. 5o These measures must be
combined with effective policies and education ofpersonnel since ''the
nature of telemedical equipment is highly technical and requires
operators at all stages of a telemedical system to have access to
information in transit.,,51 In addition to health care providers, technical
and support staff must also understand and abide by confidentiality
requirements and policies.52
In sum, patients will inevitably be concerned with breaches of
their privacy, but federal and state governments have made efforts to
ensure that patient privacy can be protected in light of the everchanging and improving technologies becoming available. In the
context of telemedicine, patients and health care providers alike must
be aware of the possibility of wrongful or mistaken dissemination of
confidential information and must take all appropriate safeguards to
prevent its occurrence.53
50. Encryption is converting text into code. Secure transmission protocols are
sets of technical rules about how infonnation should be transmitted and received using
computers. Firewalls are computer software programs intended to prevent unauthorized access to data.
51. Meek, supra note 6, at 196.
52. See Meek, supra note 6, at 186 (noting that patients may object to the presence of technical and support staffduring consultations ofa delicate nature).
53. See Appendix B for specific privacy questions for telemedicine practitioners,
critical steps for preparing to comply with IllPAA, and characteristics that influence
the probability of a security threat.
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C. The Physician-Patient Relationship and Standard ofCare
What does the physician-patient relationship and standard of
care mean for patients and physicians in the context of telemedicine?
On one hand, the same elements of negligence as in conventional
medicine-duty,breach,cause, and harm-are essential elements of
telemedical malpractice claims. On the other hand, telemedicine also
clearly casts an added dimension to these elements ofnegligence. If a
physician-patient relationship exists, and ifso when it begins, will play
an increasingly important role in telemedical malpractice cases. The
plaintiffwill have the burden ofproving that a contractual relationship
exists between the doctor and the patient.54 This type ofrelationship is
no longer limited to traditional medical consultations between a doctor
and a patient in the same room: Texas courts have held that a physicianpatient relationship also arises when a patient requests and is supplied
medical information by a health care provider. 55
Through telemedicine, a physician-patient relationship can be
established even when the parties are hundreds ofmiles apart. Courts
are likely to find a physician-patient relationship between the consultant
and the patient in a telemedicine consultation that mirrors traditional
medical situations. 56 Telemedicine's "fluid temporal boundaries" may
make it difficult to maintain the norms oftraditional medical practice. 57
For example, telemedical consultations may engage several physicians
and consultants simultaneously, or involve stored and forwarded images
54. See Meek, supra note 6, at 186.
55. See Fenley v. Hospice in the Pines, 4 S.W.3d 476, 479-80 (Tex. App.Beaumont 1999, pet. denied) (finding that, when a medical director had "overall
responsibility for the medical component 'of ... patient care," a doctor-patient
relationship existed between the director and admitted patients); Hand v. Tavera, 864
S.W.2d 678,681 (Tex. App.-8anAntonio 1993, no writ) (noting doctor-patient duties
under Texas's anti-dumping statute); Wilson v. Winsett, 828 S.W.2d 231, 232 (Tex.
App.-Amarillo 1992, writ denied) (''By its very language, the conclusion expresses
a duty arising from a physician-patient relationship in which the patient requests and
is supplied medical information."); Fought v. Solce, 821 S.W.2d 218, 221 (Tex.
App.-Houston [1st Dist.] 1991, writ denied) (''We do not believe that it is the intent
of our legislature that, merely by placing a call to a doctor's home, one can impose a
civil duty on that doctor to go to a hospital and give medical treatment to an individual
whom he does not know.").
56. See Caryl, supra note 17, at 194.
57. Kuszler, supra note 1, at 308.
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and data that the on-site providers or consultants review at a later
time. 58
A telemedicine consultant's degree of contact with the patient
and the on-site physician's discretion to accept or ignore the
consultant's advice are important factors in determining the existence
of a physician-patient relationship and the duty flowing from that
relationship. 59 "During an interactive video consultation, the telemedicine consultant generally reviews the patient's medical record ..
. examines and speaks with the patient in real time, and offers advice to
both the patient and the on-site physician, and may accept a fee for
services.,,60 Under well-established case law principles, it seems likely
that these facts would establish a physician-patient relationship.61 But
when the transmission is delayed, then stored and forwarded for a later
collaborative consultation-which is typical for teleradiology and
telepathology-the courts will likely look to the existence ofa contract
or agreement from the consultant to provide services to the patient
before imputing this relationship.62
As in traditional medical malpractice cases, once a physicianpatient relationship has been established a plaintiff suing for
malpractice resulting from a telemedicine consultation must still prove
that the physician breached the requisite standard of care. 63 Because
telemedicine breaks down the barriers of geography, it is highly likely
that the already prevailing national standard of care (rather than a
58. See Kuszler, supra note 1, at 308 (noting that the telemedicine process alters
the physician-patient relationship by changing the relationship from one that took
place at a certain time or during a specific sequence to a much more fluid
relationship).
59. See Meek, supra note 6, at 187 (listing important factors in determining the
liability of a telemedical doctor).
60. Granade, supra note II, at 69.
61. See St. John v. Pope, 901 S.W.2d 420,424 (Tex. 1995) ("Creation of the
physician-patient relationship does not require the formalities of a contract The fact
that a physician does not deal directly with a patient does not necessarily preclude the
existence of a physician-patient relationship."); Dougherty v. Gifford, 826 S.W.2d
668,674 (Tex. App.-Texarkana 1992, no writ) (noting a doctor's performance of
pathology and lab work for a patient created a physician-patient relationship).
62. See Caryl, supra note 17, at 196-97 (''The agreement to be available to
consult could be written, oral, or the extension of some other duty.").
63. See Caryl, supra note 17, at 197 (stating that a physician-patient relationship
is established if the physician participates in a diagnosis and or has a duty to be
available for consultation).
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locality-based standard) will apply.64 One commentator suggests,
"Where the telemedicine procedures are virtually identical to the
traditional medical procedures, the standard of care should be the
same.,,65 For example, there is little distinction between the way
physicians traditionally read x-rays and the way a telemedicine
consultant reads an x-ray. Therefore, the standard of care in both
instances should be the same. Other telemedicine applications,
however, may be less effective than traditional methods in allowing a
full examination and making proper diagnoses; for example, even with
the most advanced technologies, distance communication does not
permit ''hands on" palpation or touching of the patient by the
telemedicine physician. In cases where telemedicine may prove inferior
to traditional medical protocol, physicians should proceed with caution
because of the risk that a doctor may not be able to meet the required
standard of care without being able to touch the patient. In forming
opinions and providing treatment, telemedical physicians encountering
these distance-related limitations must remember that they are dealing
with limited data. 66 Care that is deemed inappropriate by telemedical
means must remain with the on-site physician.
A separate but somewhat related issue arises when analyzing
issues related to the standard of care: What if an on-site physician or
health care provider has access to telemedicine, but fails to use it? Over
time, as telemedicine modalities and infrastructures become more
widespread, courts may see arguments that "failure to obtain a
subspecialty consultation or definitive reading of a complex image or
data may violate the standard of care when [such consultation] is
readily available using telemedicine technology.,,67 To avoid these
allegations, when referrals and consults are otherwise unavailable
physicians and health care providers should consider obtaining them by
telemedicine means. When making telemedical referrals and consults,
medical professionals should employ the same criteria, guidelines, and
64. See Caryl, supra note 17, at 197 (stating two possible standards of care: the
traditional view that defines the duty by local standards and the modem trend that
adopts a national standard of care).
65. Caryl, supra note 17, at 197.
66. See Caryl, supra note 17, at 199.
67. Kuszler, supra note 1, at 316.
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medical judgment used when making referrals or obtaining consults
through traditional medical methods.
Another issue regarding the necessary standard of care relates
to a physician's liability for technology failure. If a physician or other
provider fails to use telemedicine technology in an optimal manner,
potential liability exists for the misuse. 68 Telemedicine is a tool, and
like any other medical tool, the use ofthis technology requires the skill
and experience to use it adeptly. There is little doubt that telemedicine
technologies will experience intermittent failures or periods of
unreliability: communication lines may be down, signals may jumble,
or equipment may fail. To ensure the reliability of telemedical tools
and avoid potential liability, health organizations should ensure that
reasonable and customary safeguards and back-up systems are in place
and operating effectively.69
D. Licensure
Telemedical practice is not limited by geographic boundaries
and easily crosses state lines, but physician licensure does not. Each
state has the power to regulate the practice of medicine in order to
adequately protect its citizens.7o This power, and the states' ability to
prosecute noncompliance with licensing requirements, threatens to
impede the national spread of telemedicine.71 "A telemedicine
practitioner may avoid liability for the illegal practice of medicine in
another state by: (1) limiting his telemedicine practice to the boundaries
ofthe state where he is licensed; or (2) becoming licensed in each state
where his telemedicine practice may extend.,,72
Out-of-state or multi-state licensure problems are being
examined at both state and national levels. A variety of licensure
options exist, including: (1) allowing an out-of-state practitioner to
practice as a consultant in another state; (2) establishing reciprocity and
endorsement between states; (3) creating limited-scope licensing within
68. As with any other medical tool, physicians who employ telemedicine in their
practice will have to meet minimum standards ofskill and experience.
69. Kuszler, supra note 1, at 318.
70. See Kerry A. Kearney, Medical Licensure: An Impediment to Interstate Telemedicine, 9 No.4 HEALTH L. 14, 15 (1997).
71. See id. (concluding that unless licensure requirements are eased, telemedicine will be limited to intrastate networks).
72. Caryl, supra note 17, at 185.
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a state; and (4) completely eliminating state licensing to establish
national-levellicensure.73
Texas has adopted a special purpose license system to allow
professionals to practice medicine across state lines.74 The Texas rules
require any medical examination--electronic or otherwise-of any
patient in the state to be perfonnedby a practitioner who is licensed by
the State of Texas, with exceptions only for episodic and informal
consultations, emergencies, and consultations provided to a medical
schoo1.75 A Telemedicine Information Exchange survey identified that
in the year 2000, twenty states had limited scope or special purpose
licensure systems similar to the Texas statute, three states allowed
reciprocity limited to telemedicine, and the remaining twenty-eight
states had taken no action with regard to the issue of licensure for
telemedicine consultants.76
Any system that requires physicians to obtain licenses in each
separate state poses the danger of making it too cumbersome for
physicians to become separately licensed to practice in multiple states.
For example, a physician wanting to practice telemedicine in several
states would be required to maintain licensure in each state by paying
licensure fees in each state, meeting continuing medical education
requirements for each state, and so on. The Federation ofState Medical
Boards (''FSMB''), a nonprofit organization representing the state
medical licensing and disciplinary boards in the United States, has
proposed a model act for a national "telemedicine only" medical
license, which would be valid in those states that chose to participate in
the program.77 This proposal is closely related to special purpose
73. See Meek, supra note 6, at 181-82; Jennifer F. Walker, Telehealth Complex
Issue Being Addressed by State and Federal Governments, 66 AORN J. 709, 709
(1997).
74. See 22 TEx. ADMIN. CODE §§ 174.1-174.16. (2000) (Tex. St. Bd. Med.
Exam., Telemedicine).
75. See 22 TEx. ADMIN. CODE §§ 174.1-174.16. (2000).
76. See GLENN WACHTER, TELEMEDICINE LEGISLATIVE ISSUE SUMMARY:
INTERSTATE LICENSURE FOR TELEMEDICINE PRAcrmoNERS 4 (Telemedicine
Information Exchange, Mar. 10,2000), available at http:/Ztie.telemed.orgllegal/issuesl
licensure.asp (noting that of the states that have taken action on this issue, only
Alabama, California, and Oregon have adopted licensing procedures meant to
encourage telemedics).
77. See Barry B. Cepelewicz, Telemedicine: A Virtual Reality, But Many Issues
Need Resolving, 13 MED. MAL. L. & STRATEGY 1, 2 (1996) (discussing alternative
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license requirements in states like Texas. Unfortunately, the model act
allows each state to create its own standards for issuing a license.78
Thus, this telemedicine only method of licensure would only serve to
help lessen the burden of multi-state licensure if application and
renewal requirements are standardized or at least maintained through
a national clearinghouse.
Most proposals in favor of creating a national clearing house
include a "national license coupled with national board examinations
to be given by various specialty societies.,,79 Before any federal
medical licensing system can be implemented, however, Congress will
have to determine that the practice ofmedicine has a substantial effect
on interstate commerce, which would give the legislature jurisdiction
to legislate on the issue. 8o This may meet substantial resistance from
the states. However, it may prove to be the most workable solution to
licensure problems-at least from the perspective of health care
providers-because it eliminates the burden of obtaining licensure in
each state.
Doctors practicing across state lines may also encounter
problems with liability insurance coverage. Some liability insurance
carriers refuse to insure the practice oftelemedicine, arguably because
of the currently questionable nature of the physician's need for
licensure in each state. 81 Telemedicine doctors pose an increased risk
that many insurers are unwilling to cover. Liability insurers may be
reluctant to defend cases in distant jurisdictions where they do not
anticipate defending lawsuits since the covered physician is not licensed
to practice in that distant state. Physicians must consider whether the
"failure to possess a separate license to practice in each state contacted
via telemedicine might lead to additional malpractice liability.,,82 The
ultimate question in determining liability is whether the lack of
licensure can be construed as evidence ofnegligence (i.e., the physician
fonns of licensing telemedical professionals).
78. See Teri Lee Jones, Don't Cross That Line, 92 TEx. MED. 28, 29 (1996)
(explaining that although the model act's creators intended the act to be easy to
implement, each state would work out its own standards for issuing a license).
79. Meek, supra note 6, at 183.
80. U.S. v. Lopez, 514 U.S. 549, 558 (1995) ("Congress' commerce authority
includes the power to regulate those activities having a substantial relation to interstate
commerce.").
81. See Jones, supra note 78, at 29.
82. Granade, supra note 27, at 87.
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699
was not licensed to practice medicine in this state and therefore was not
qualified to perform the diagnosis and treatment).83
E. Venue/Jurisdiction
Jurisdictional and venue questions are inevitable in telemedical
malpractice cases because health care services span across county, state,
and international boundaries. In determining where alleged malpractice
took place, parties must determine the location of the alleged
malpractice by examining where the practice of medicine occurred.
Certainly, the patient hopes for jurisdiction in their state of residence,
with venue in the county in which they reside or where they were
physically present for the telemedicine consultation. The question of
whether the court in that county has jurisdiction over the case then
focuses on whether the doctor has "sufficiently availed himself' in the
patient's state ofresidence to warrant its jurisdiction over him. 84 Due
process prohibits a state from asserting jurisdiction over a defendant
unless the defendant has had "minimum contacts" with the state. 85 A
state must show a substantial connection ''between the defendant and
the forum state necessary for a finding ofminimum contacts that must
come about by an action ofthe defendant purposefully directed toward
the forum state.,,86
According to one telemedicine scholar, "Case law supports the
notion that because the practice of medicine is a personal service, the
point of service in jurisdictional issues is generally held to be the
patient's location.,,87 However, this point of service may be altered by
the amount of contact and type of service provided by telemedicine.
For example, non-interactive uses of telemedicine, typical in
teleradiology and telepathology, could be found to occur where the
physician-and not the patient-is located. Yet the point of service is
83. See Granade, supra note 27, at 87.
84. See Meek, supra note 6, at 188.
85. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Int'l
Shoe Co. v. Wash., 326 u.S. 310, 316 (1945).
86. Asahi Metal Indus. Co., Ltd. v. Sup. Ct. of Cal., 480 U.S. 102, 112 (1987).
87. Meek, supra note 6, at 188; see also Wright v. Yackley, 459 F.2d 287 (9th
Cir. 1972) (standing for the proposition that the state in which a doctor prescribed
medicines to a patient has jurisdiction, not the state to which the patient subsequently
moved and refilled his prescription).
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likely the patient's location when an interactive consultation occurs in
real-time and the physician actively engages in a discussion with and
conducts an examination of the patient. 88 The more contact a
telemedicine physician has with a patient in another state (e.g.,
interactive examination, discussion, orders, medical recommendations),
the more likely the physician has established minimum contacts with
the patient's state. 89 Once these minimum contacts are found, most
states have long-arm statutes that allow the state to assert jurisdiction
over non-resident defendants. 9o
A physician engaging in telemedical practice should be aware
that a lawsuit could also be brought in his state oflicensure, because he
would also have sufficient ties to that state, making it another suitable
forum for the plaintiff. Also, ifthe patient and telemedical doctor are
from different states and diversity of citizenship is established, the
patient may choose to file the lawsuit in federal COurt. 91 Therefore,
traditional jurisdictional principles, when applied to cases involving
interstate telemedicine, may provide a plaintiffthe opportunity to forum
shop and choose the most favorable jurisdiction. While this could serve
as a deterrent to physicians considering telemedical practice, they
"should not expect to benefit from a state's law that allows them to
practice medicine and then evade liability for malpractice in that
state.,,92
III.
Conclusion
The existing legal framework for medical practice does not
adequately address telemedical malpractice issues. Advancements in
communications technology and the far-reaching benefits to the
delivery ofhealth care have forced health care providers and the legal
88. See Granade, supra note 27, at 86.
89. Int'J Shoe, 326 U.S. at 316 (holding that personal jurisdiction can be
exercised over a defendant in any state with which the defendant has "certain
minimum contacts . . . such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice"').
90. See Granade, supra note 27, at 87 ("Since 1993, at least 10 states have
passed legislation or regulations requiring out-of-state physicians to obtain licensure
in that state before providing medical services via telemedicine. Clearly, the states are
concerned about the growing ease with which providers are practicing across state
lines.").
91. See Granade, supra note 27, at 87.
92. Caryl, supra note 17, at 203.
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TELEMEDICINE LIABILITY
701
system to move beyond traditional medical jurisprudence to new
considerations regarding the implications of telemedicine. Yet until
legal questions are resolved, the practice of telemedicine will be
hindered and its ability to increase access to health care will take a step
backward. In all likelihood, both state and federal intervention will be
necessary to secure the future of an interstate and even international
telemedicine system. As telemedicine becomes more commonplace,
the courts will undoubtedly address legal issues of consent, liability,
confidentiality, licensure, and jurisdiction. Until that time, an
awareness of and commitment to resolve the legal obstacles will serve
to help keep the goal of better health care access and delivery alive
through telemedicine and future technologies.
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Appendix A
TEXAS 1ECH UNIVERSITY HEAL'Ilf SCIENCES CENTE.R
Tl!LEMEDICINE CONSULTAnON CONSI!N1'. JlEl.EASE
OP INFORMAnON AND PINANCIALRESPONSIllJUTY
CQNSENI'JwlW1wi1Y""lutstTauTccblhUvcnityHa1chSdalccsCcntr:rmdDoaon(.)_......,,=-=="'=-_~_
and such auoclot.., tcdmicaI asslnan1s and other health cue proYidcn as they may cI= neccswy ("Tl'1JHSC Tdemedicinc
CoDJUIWlU") to panlcipart in my m<dical care tbtcugb tdemed1dne COIIIUIratioIl. I wdctSlaJld thor rdcmedil:i= coruuItalioa
Induclcllntetto<tlvc 1Udio. video or other dcctromc media. r fuaha-uadcntoad th2t TrtlHSC ... uae:!>iq; i=lJtutioa and) apt
10 be • part of 1M rachinC progroms.
IlUldcnraad rhot'JTtJHSC Td"",",ldac CollSnlDlets ptaetl" in • dif{ t Iocatlou tIwt my prirnacy h=lch art provider. do
DOt hne!he opportunity to meet mt e-_fnce or perform • pbpial
m;nation, and ruuJt ttl)' on Woanadon pmvidcd b)'
mcandm70lHltebc:l1lhartprovidm. I~rh&tTI'UHSCTdtmcdir!nrCoasultantl_bebddliabltfarlllMcc,
reco........wlloao u.d/or der:ioio... baed on fr.cton DOt withia tbeir control such IS iaeample<e or inucura1e clw. provided by
othctt or dbtortiocla at cIIacnDItic f=&a or Ipccimcas that mq result !tom dectronlc tra:lIsmissioa.
J further odaIoll'kdge that my priawy beaIch e:atCprovlcfer mmlns III clw&e ofmymcdial c:are md is aocobUgaled to CDIIll'ly
witb the..Mcc, ~'" aad/ordceislollsofITUHSCTc!emedlciaeC<!osultsal' I UDdcnralldtbotS10 1I'2tntttlesor
patalIlCCI ate made tomt_ to result or cure. r ~rh&t it Is my respomiblIityto providcillf~about my medical
hbtory. coaditIoa alId care that is COlIlP!e<e alId a=nte to the best of my ability. It is aho my rapottJibiIity to comply with
InJtnlctiolu J rucive frocn my heaIch care provIden alId to report cIewiatiolUl &1m such 1llstruc1ions to my beaIth an: provlden
In. timely lIUllUKI'.
To cmbIe TI'UHSC Tdrmedicinc Coasuhaats' pmlclpotioa in my are, J voIunbriJy RljUt3t and :authome the diKlosure ollllJ
or any part of m)'m<dical reeord(lDdudiolonI illfon:aaUol1) toTIlJHSCTdemerIidM ~ltantsby my ",,-lite bcalth c:=
providen. ) Wlclmtmd and qrco that the W-uoa I am IlIthorizlnI to be released may iadu4e: l)AlDS/HIV test resuIu,
d1Jpools, treatment and rdated Wotmatlosr; 2) dnIc _
rcsaIts aad InfDmlSZicD about drug ad alcohol we aad t=t=nI;
and 3) menl#l heaIch irlforaWl=
J WIdmtaI1d that the cIisdosure of my lI:llOdial iofonn&Iion to 1TUHSC l'eIemcr:Ilclae ConsuJunu, iadudicg the audio *"tl/or
¥ideo eaasullJtion, will be by ~ tnnuniulon Althoup. JIftlC'lDdo... are Wen to proteCt the eoafidc:atiaIit of this
irlfonmdoa by ~ UlIMIlhIlriud reriew. ) UIIdmtaod rht dcctroalc transmlsDoa of dau, video irmp, aad audio Is r>eW
and dnelop!aa tethaolocY and COlI!ldeutWity mq be COlIlpt'OUIised by IIlepJ or improper tamperiorJ COCIa1t :I2ld I1lthorizc 1TUHSC Tdcmedldae CO"RJltm~ to audio reeotd, video record. and/or It1II photograph the
QOlUUltatloil. J Ul>dcntand that Ill)' Ot' all pull of my body auy be iaduded ia these visual c1JspI.t)'l and that this petmiuioo
iJldudes. . . reeonliaI of -eical preotiIuza. I 1&= that tbeoc: recordiapwlll rrmaIa the property ofTl'UHSCTdemedkine
ComuhactJ IlId auy or mq Dot be..-: part of the medicII I'tCOftl I ~d thlt this tdcmedk!Ju, amsulwion may be
YIcwai by eutdl1 mcdial ...4 I10IHIICdIeaI pctIOCII for iaformatioaal, mea:cb, and educational parpooes. Theoe visual dhpla)'l
auy be pubIlrbed a. prof! IM·I joumaIo, boob, ~ mel other sioliIu ~ ia the Illterat or medial and
tel<mcdlcln. edoeatloa. kaowJcdCC. and research. I waive all)' aM all rJ&h1s, compcasatiOD. ~ or other P")'D>elIlIn
-.-Ion widI the lUIe olvldtoqpcs, pbotopp&r. mcllrasp. [IwtherDJ>dcntaad that all)'p~aad\'ideotIpa ~
the property ofTCUI Tecb l1lIIvmIty HaIth Sclcsca Ceotee lIl>d may be ud wlth=: any further &Ilthomatioa or Doti= to n>e.
f abo IIlIdentZl1d that the lmIaa mq be wed ia" IIWIlla' that mq or _y S10t Ic1cl:ltify me by _
1 abo rcliaquish all)' Ji&bt
to Iruptct pbotopllplu aod ~
J. - that this CllGJCQt will be nUd and temah11n c!&tt; (drde ODe)
.. IIIIoq .. I _ d the
b. durit>I my current hocpkalizat/oD
Co rpccifyothertlmellmic:
CIilIic
_
RELEASE or INFQRMAnQNl TItlHSC 'Tdem<diciDe CooPdHt!tI may cliKIose all on"y part of my mcclJcaI rccotd (IncIudlag
onIlDfonD:ltloo) 1IlIiI-r provide blllJ/Iawlc:a to: 1) all)' penoo. corpontioa or ~/« lhdr aut!Iodztd rq>iueutati.t) which
Is or mq be llahIe UDder. _
to TI'lIHSC, or to me or my family mcmhcn for all or part of the tekmcdlcln. COS1SIIItarioa
CON11NUETO SECOND PAGIl
Pqolof2
HeinOnline -- 20 Rev. Litig. 702 2000-2001
Summer 2001]
TELEMEDICINE LIABILITY
703
c:batza ~ but POt limited to, bcfpita1 Of medical ocrvicc CXlI11pIIIlcs, inslIrmce or lhl:d party pa,m, WIlrkm' rompeoAdoo
~ crmycmployet;.cd 2)
urr 1lIdirid=I or entity ~ by me as "cu-otor or plfo/ rcspocJ!bIe far~ olfea
for health care senica pnnided to me.
I Wldentand that t may revoke thU authorlzatloll for the release of illfonmtion at any time, by provld1llC 'lfrittcu J1~ to
'ITUHSC Celltu for Tdcmedlcille c:x=pt to the = t that ae:tica has been taken in rdiaace Olllt.
UllIess arlIer m'Oked, this autborizatlOll explres auto=lialJy Dinety (90) days £tom the date sipled or Illllety (90) days mer the
1m COllJUlt or after 2ll insunna: or lhl:d party cIalms Im-e been p2id or A1ishctoril1 rcsolv=, whJchevc: llCCUtJ lasl.
REIEASg PROM UAJ!U1J'YIl ~ and qrceto Mld harmless TrUHSC mel its agarts, rrpraauatives, md employees &OlD
lilly mel aU tiabilit)' aaoWted wlth the release III amfidcJItid patjellt informotiOIl in IlCICOtd= with Ills mthoriutiaJI. 1
undcrstaad TnJHSC CI11QIlt be raponslble for we or reclJscburc of informatloa by thin! puties.
FINANCIAL RESPONSlBlLUY AND ASSIGNMl!NT OF BEN!!PlIS1 In colUid=tioa for rcccivin& mcdlc:a1 or health care
oc:nices, 1 hetd>y aull'l my rilbt, thle, and interest in all UIsunll=, McdkarelMe&aid. Of other thi:d porty payc:r ba>eIits for
medlea1 or health cue ..rvi= in.cludlnJ b'1cmed;~ COIIS1Ihs ~ payoblc to _ to'ITUHSC p1lysiciam mdlor Medico!
PrKlIce b:ome Plan. l:abo authorize dlnct pa11JlClllS to be;mde by Mtdlc:areIMedlc arJIJor my Iutnaoe~Of other
third party payer. up to the total-..t of my IIlCdil:al and bea1th an: chatp, to TTUHSC pbyslcla;u and/or ~ Praclic:e
lDccale P1aII. I certify that the Ioformatioa 1 bavcpr<Mdcd in CllIll1CCtion with
Ipplieatioa for pI)'lJICUt by thi:d party paycn,
indudin& Medi=cIMedlaid, is <on'CCt.
urr
I agree to pal' all dwzes CO" medial:and health cue --.ices Uldadilla tdemedlcinc COIlSuilS DOt COYCl'Cd by or wh!l:b c:=cd the
_
eotinttted to he paid or ac:tu2lly pjd b1 my iasDr= COlI1l*ly or thi:d port)' payer :and ac= to aW<c pa)'JIlCDt a
reqaested by Tt'UHSC.
5"~of
SigIIItIIre of
Patieatlodler Lcplly Authorized Penoll
VltllcstorT~
Print Patleot Namel
or my other Leplly Aumorized PersoI1
Print Nome ofvwiCu or TrIlUlstor
lime
Ptco2of 2
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AppendixB
PRlVACY QUESTIONS FOR TELEMEDICINE PRACfITIONERS
Interactive Information
•
Would lin intenletivevideoconfcn:ncingconsullalion beconsidercd ''pron:ctcd health
infonnatiun?"
If so, should videotape ofa tcl~nsu(tation be kept as a part ofthe patient
record? lfvideo must be discarded. how should it be discarded? Ifnot, how
long should the tape be stored with aulhori1..atiun from a patient?
Store and Forward D1gltallDformation
Should "store and forward" images be identified using only a patient code?
Will de-eoupJing image and identifier infonnation create greater problems
ralher than resolve them?
How wiU the transmission ofstoTe and forward data be protected?
•
Trahllug
•
In addition to medical pl'llClitioners. how will employers train other
employees with access to patient data (sueh as video camera operators) on
privacy issues?
How should the tel~DSUlting room be secured and made sufficiently
private? For example, Kinko's is experimenting with the provision of
telemedicine at their stores. HowwiU a patient's privacy be ensured in this
case?
Legal QuestiODS
•
What kind of protocol would practitioners need to notifY patients about
teleheallh privacy authorization?
•
What kinds ofeonlraets must be CI'Cllted for non-medical employees?
CRITICAL srEPS FOR GETTING READY TO COMPLY wlTn HIPAA
Initial security responsibilities and organization awareness
Baseline security assessment
HeinOnline -- 20 Rev. Litig. 704 2000-2001
TELEMEDICINE LIABILITY
Summer 2001]
Gap analysis
Risk assessment
Resource idcntification
Develop/revise policies and procedurcs
De:.;gnlrevise security architecture
Implement enterprise-wide security
Establish corresponding administrative support
Establish audit process and mechanisms
ClIARACTERJSTICS THAT INFLUENCE THE PROBABILITY
OF A SECURITY THREAT
Number ofuscrs
Types ofusers, internal external, on-site, remote, contract
Types ofaccess; level and scope ofaccess
Ftequency of use
Knowledge level of users
Numbers of locations/sites
•
Physical environment
Number ofs}'lltems
Types ofsecurity controls
Interdependencies and interfaces
Office for tbe Advancement ofTelehealth • 5600 FUllen Lane, Room 11 A·55
Rockville, MD 10857' voice 301-443-0447' fax 301-443-1330
teJehealth.brsa.gov/pabslpl'fvac.btm
HeinOnline -- 20 Rev. Litig. 705 2000-2001
705
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AppendixC
American MedIcal Association Web-Site Guidelines
The American Medical Association (AMA) published guidelines in JAMA to guide
organizations in the maintenance and dcvclopment of AMA web-sites.· These guidclines arc
intended to provide helpful ideas regarding medical information being provided over the internet.
While the guidelines are aimed al the dissemination of medical information via the internet., they
may provide helpful information regarding the administration of health care in a telemedicine
consulllllion.
•Winkler. M.A., Guidelinesfor Medical and Health Infonnation Sites on the Internet: Principles
Governing AMA Web Sites, lAMA, March 22129, 2000.
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Telemedicine Web-sites
While many web-siles focusing on telemedicine currently existon thelntcmet. the following
web-sites provedparticularly beneficial inthe research and development ofthisprcscntation. Select
sites provide users the opportunity to place themselves on an e-mailing list to receive new
information on a number ofdifferent aspects oftelemedicine.
•
www.healthprivacy.org: Contains information that deals mainly with the concerns
patients and health care providers have with the privacy of patients' medical
information.
www.tie.telemed.mg: Telemedicine Information Exchange. Contains helpful
informationabout the evolvingusesortelcmedicine. It contains links to infonnation
about active telemedicine programs. meetings on te1emedicine. funding resources.
journals, and legal issues surrounding the use oftclcmedieine. The legal issues link
contains useful information on pending and enacted federal and state legislation.
This web-site seems to bethe most complete look at lclcmedicine, and probably the
most thorough when addressing legal concerns in telemedicinc.
Vlww.jama.ama-assn.org: Contains infonnation put out by the Journal of the
Amcncnn Medical Association. It contains information in an on-line magazine
formal, and allows users to consult past issues ofJAMA on-line.
www.telemedmag.com: An on--Iinc magazine devoted to conveying information to
thepublic about telemedtcine. Usersbavctheoptiontojoinan e-mailing list in order
to receive periodic infonnation via e-mail regarding new issues and developmenls
in telemedicine. Contributorsto this web-sitc frequently wrile aboutthenation's best
tclemedicincprograms and provide links to those programs where users can actually
()bserve a taped telemedicine consultation. Contributors also write about how
different states are dealing with their telemedicine programs.
'www.telehealth.hrsa.&ov; Office for the Advancement ofTeleheallh (OAT). Much
like the site described above, this web-site contains magazine-like articles about
issues surrounding telemedieine. Links to other telemedicine-related web-sites arc
provided, as are links going directly to pending slate and fedcrallegisJation.
•
www.hhs.gov: Department ofHeallh and Human Services. Contains information
onpending and enacted federal telcmedicinelegislation. UsetS are allowed to submit
comments about certain pieces oflegislation, as well as review comments submitted
by others.
•
www.arentfox.com: Contains infonnation relating to telemedicine that is largely
legal in nature, In addition to containing the meaget amount of case law on
telcmedicine issues, the weh-sile also contains information on CUlTCllt state and
federal legislation on telemedicine. Users can ditecl1y access this case lnw and
legislation through links on the web-site.
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•
www.tclcrncdjcjneindcx.com: Business information pertaining to theTelcmcdicinc
and Teleheallb industry.
•
www.hg.nasa.gOv/officc/olrnsaJaerQrned.lelemed: Highlights NASA's activities in
telcmcdicmc and provides an overview of the in-night medical care systems that
have been used to support astronauts during space flight ovcrthe past 40 years.
•
www.at§p.org:AssociationofTelehealthServiceProviders.Aninternational
membership-based organization dedicated lo improving health care through growth
ofthe tclehcaJth industry.
•
www.t!uhsc.edu/lelemedicine: Official web-sile for CenterforTelemedicineatTexas
Tech University Health Sciences Center. Provides an overview of the program,
along with links. photographs, and history.
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