Telemedicine has the ability to bypass borders. Yet, one of the main problems in this field is the fact that by being able to access patients regardless of borders, the practice of telemedicine is still constrained by the rules, regulations and standards of the country or state that the patient is in. This segment attempts to shed light on this issue by discussing the impact of the differences in law in the locality of the physician and the locality of the patient.
Background of the Study:
This part of the study will attempt to show the main legal issues concerning the issue of Telemedicine in the United States at the present. For purposes of limiting the scope of the discussion, it will focus on the following key issues that are relevant in addressing the legal conflicts in telemedicine. These three areas are licensure, telemedical malpractice and jurisdictional issues.
For a doctor or physician to practice his or her profession in another region or area, it required that the doctor possess a license or is authorized to practice in that area. The fact that telemedicine allows doctors from one area to communicate or provide medical advice in another locality with relative ease means that the practitioner must also possess the proper license to be able practice medicine in that area. It is the location of the patient that defines where the care has been delivered and the jurisdiction of applicable regulations.
Physicians practising telemedicine must be authorised to practise medicine in the country or state in which they are located and must be competent in the field of medicine in which they are practising it. When practising telemedicine directly with the patient, the doctor must be authorised to practice medicine in the state where the patient is normally resident or the service must be internationally approved.
There have been many developments regarding this issue such as the proposal to provide temporary licenses which enable a practitioner to perform consultations. It is apparent however that these proposals merely act as “band-aid” legislation since it does not adequately address the issue. The true solution to this issue lies in being able to come up with a standardized requirement for proper licensure in different localities and jurisdictions. The implementation of such a regulation would not only undoubtedly raise the quality of the medical profession in remote areas but also provide competent health care services to people all over the world regardless of their proximity to adequate medical services.
In relation to the issue on quality and safety in the practice of telemedicine, telemedical malpractice is a real threat to the growth and development of this field. According to an article on telemedicine, “The addition of telemedicine technology to healthcare delivery has had positive effects on the practice of medicine, particularly for providing access to specialty health care to geographically or otherwise isolated patients. Yet, it is telemedicine’s effect on medical liability that requires some examination if its eventual assimilation is to be ubiquitous or just a footnote to modern healthcare.”
One of the aspects of this issue lies in the insurance coverage that medical practitioners are required to have and the cost of such insurance. Most commercial insurance carriers do not provide reimbursements for telemedicine consultations. While some practitioners do not get reimbursed for telemedicine as the “cost of doing business”, most if not all of the medical practitioners are hesitant to provide medical expertise without compensation.
This situation leads therefore to a problem wherein there is available medical help from a competent individual but that person is unwilling to discharge any help due to the risk involved as evidenced by the number of medical malpractice suits including the high percentage of those suits being groundless. The lack of telemedicine malpractice case law from which to draw some ground rules about legal risks associated with telemedicine makes it difficult for any practitioner or insurance underwriter to assume the risks involved with such practice.
The last area of this issue which will be discussed in the succeeding section is in the jurisdiction where the malpractice lawsuit will occur if ever one is filed. The situation has been characterized in this manner, “One could easily imagine that a telemedicine practitioner could be forced to defend herself against legal actions in the state where she holds a license, as well as the state where the alleged patient injury occurred, or both. Based on established legal principles, it is likely that an action could be brought in the physician’s home state. However, when these issues are finally resolved, it seems likely that telemedicine practitioners could also be subject to the jurisdiction of the patient’s home state.”
It has been established that a practitioner can be held liable for any malpractices in the practice of telemedicine. What is unclear however is where the practitioner will be held liable since the court will have to properly acquire jurisdiction over the subject matter first which is a problem when dealing with the internet and cyberspace. To hold the practitioner liable in two jurisdictions would violate a person’s right against double jeopardy and also create a problematic situation in case the offense committed is punishable in one area but not punishable in the other. While the New York medical board has opined that the situs of the offense should be where the medical treatment is given, there are other authorities which state that the answer is not as simple as that.
The lack of sufficient case law regarding this matter leads to the following theories by applying the laws on communications analogously to this situation:
1.) Jurisdiction will be acquired by the state or country where the Physician is located
2.) The state wherein the patient is located
3.) Any state wherein the physician has established sufficient business links via telemedicine
The relevance of establishing the proper venue or jurisdiction of these cases is that the jurisdiction is a key factor which must firmly be established not only for medical malpractice lawsuits but also for enforcing the safeguards and guidelines for proper. Attempts to create a single standard by which the practice of telemedicine is to be carried out would all be futile if there was no way by which the violators could be punished and held liable for their actions.
Objective of the Study:
The objective of this study is to determine the answers to the following problems which presently affect telemedicine:
1.) Is there a need to create new laws to govern the practice of telemedicine given the rapid increase in its practice all over the United States?
2.) Does the legal model provided by the New York State Department of Health present a viable legal framework that can be adopted?
3.) Is there a need to use other laws that are found in international models in order to devise a comprehensive and effective legal system for the guidance of the practice of telemedicine?
For this purpose, the current rules and regulations of the New York City Department of Health will be analyzed. This will be compared to the existing standards on a national level in order to show the advances that the previous law has. Accordingly, on the basis of this study, a recommendation will be presented on the model law that should be released to govern in the cases mentioned in the previous section.
This study will first take a brief glance at the development of the safeguards that have been put in place to protect the welfare of patients in general. This will be accomplished by checking the pertinent local laws of the State of Washington and New York. A concise but informative view will be provided on the economic relevance of such a study which is aimed at providing an awareness of the importance of the issue at hand. This will provide information on the motivation for hospitals to engage in such a practice as well as the effects that such a practice has on patients and the possible benefits from the abolition of such a practice. Finally, this study will provide a discussion on the methods by which the existing problems that are affecting the telemedical practice can be addressed.
It has been clearly shown throughout this discourse that the common problem that affects the practice of telemedicine is the lack of reliable standards. As stated, the lack of a single unifying standard by which the field of telemedicine is currently being practiced constricts the growth of telemedicine. A common standard by which medical practitioners could practice telemedicine would greatly even out the disparity in the quality of medical services being offered in highly technological countries and the lesser developed countries. The establishment of rules and guidelines on what law to apply would no longer be needed and courts will now be able to easily acquire or pass on jurisdiction in line with the goal of being able to ensure that the standards in the practice of telemedicine are followed.
There is no way to predict what the future of telemedicine is as its development and growth are determined not only by the factors discussed in this discourse but also by the growth in technology in the years to come. The fact that remains clear however is that there will be no future for telemedical practice unless the legality and ethical implications of the key aspects of telemedicine are sufficiently addressed.
There have been many developments in the field of medicine over the past 100 years. While the cure for cancer and AIDS has not yet been discovered, multiple scientific breakthroughs in the field of science and medicine allow for cures that were not even imaginable a century ago. Where during the early 1900s medical calls and personal examinations were necessary to diagnose patients, today, with all the high tech gadgetry that is currently available, a person can be diagnosed in an instant. Pregnancies can be accurately predicted by “peeing on a pen”. As the technology began to improve and communication between people became easier, faster and more reliable, it was inevitable that the day would come the Telemedicine would emerge.
Telemedicine is basically the delivery of medicine from a distance or from a more technical point of view, as the “use of telecommunications technology to provide medical information and services”. Telemedicine is usually associated with the “connection of medically deprived or geographically distant areas with medical centers”.
There can be no denying the fact that as communication facilities continue to improve the filed of Telemedicine will continue to expand since it will become easier to access patients in remote areas or anywhere for that matter. The growth of cyberspace and its ability to “challenge and bypass national and international borders, cultural and ethical standards, regulations, and laws” will make the practice of Telemedicine more prevalent in the coming years.
This study seeks therefore to outline the possible areas of conflict that will arise from the growth of Telemedicine, focusing in particular to the ethical and legal aspects of this field. This study will begin by providing an overview of the field of Telemedicine and looking at its historical development as well as the current fields that it has branched into. The study will then proceed to discuss key aspects that pose certain ethical and legal aspects such as Confidentiality, Patient Rights and Consent (Physician responsibilities and competence), Data Protection and Security, Telemedical Malpractice, Jurisdictional Issues, Quality, security and safety and Patient/Doctor relationship.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 28 November 2016
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