Guest Editorial

Jump-starting Telemedicine

Two dominant fields in modern life are increasingly displaying a strong synergy—information technologies (IT) and the provision of healthcare. This process is responsive to the new e-patient, who is increasingly equipped, enabled, empowered, and engaged. The incorporation of sophisticated IT in healthcare allows for a growing range of needed e-health applications, including telemedicine. Telemedicine encompasses both tele-care (e.g., tele-surgery, tele-psychiatry) and tele-monitoring (for patients with chronic diseases). The net result could be a more accessible, efficient, safe, and advanced health system.

In light of these technologic advances, we need a vigorous effort by regulators to facilitate dissemination of telemedicine by removing licensure and professional liability impediments. Regrettably, such an effort has not yet been forthcoming, although some components of the recent health reform legislation herald the long-anticipated change. ¹

A 2004 U.S. Office of Technology Policy report estimated a $380 million telemedicine market, with projected annual growth rates of 15 to 20%. ² Some new market research predicts a much higher figure—$23 billion by 2015. ³ The market exhibits several modes of operation, as current telemedicine interactions are conducted in different versions, each necessitating a particular business model.

One scenario involves a direct provider-to-patient interaction (also known as the “direct patient care” model), such as in tele-monitoring or tele-psychiatry. It allows the patient the freedom of medical interaction without relying on a local provider, and requires the provider to establish the contact point and patient recruitment. A different model stipulates the presence of another provider with the patient (also known as the “provider to provider” consulting model); this is customarily practiced in ENT tele-consultation or tele-surgery. This model tends to shift ultimate authority (and thus legal responsibility) to the provider at the originating site.

Yet another model is devoid of patient presence altogether, such as in tele-radiology, which fits a B2B model and relies primarily on intra-institutional contracts, based on outsourcing some activities to more cost-efficient locations. ⁴ In 2007, 44% of all radiology practices in the United States reported using tele-radiology. ⁴ These operating models have important legal implications relating to the creation of physician-patient relationships and regarding licensure requirements.

Generally, outcomes of telemedicine seem to have a positive trend, ⁵ but medical benefits need to be clearly proven. ⁶ Cost cutting has been demonstrated in several areas of home care and tele-radiology, ⁷ but these economic benefits also require further confirmation. ⁸ In the field of ENT, demonstration projects have proven beneficial on many accounts. ⁹ Indeed, some favorable aspects of telemedicine seem hard to refute, such as offering access to healthcare in rural areas or garnering ancillary savings by avoiding travel time and costs. ¹⁰ It is important to note that because telemedicine allows wider access to care, it is pertinent to developed countries as well as developing ones, as disparities in health outcomes and availability of medical services have been documented in developed countries, as well. ¹¹

Despite the potential benefits of telemedicine, not enough has been done by regulators and legislators in order to support this emerging industry and to facilitate the dissemination and implementation of telemedicine. The most urgent challenge is to solve the licensure problem.

Currently, a physician is considered to be practicing medicine in the state where the patient is located. In the United States, licensure has been a state's prerogative, resulting in the need to obtain a license for every state where one wishes to practice. The licensure requirements for practicing across state lines have been subject to growing criticism. Based on “public safety,” it seems hard to justify, for example, why local requirements for a Pennsylvania license would be insufficient for practicing medicine in Colorado. Citizens in both states should be similarly protected from the unqualified practice of medicine.

The Federation of State Medical Boards recommended in 2002 that state medical boards develop and use an expedited licensure-by-endorsement process to facilitate multistate practice. ¹² The border-free nature of telemedicine provides us with another powerful reason to call for a more uniform licensure process throughout the United States.

The sensible legal solution to the licensure impediment is to respect the rights of practicing physicians to engage in professional activities wherever they are. Since a patient may travel to any state or country to be treated at his or her sole discretion, seeking telemedicine services should be characterized as electronically “traveling” to the state where the physician is located and is licensed. ¹³ Indeed, the Joint Committee and, recently, the Centers for Medicare & Medicaid Services ruled that practitioners who render care using live/interactive systems are subject to credentialing and privileging at the consultant site when they are providing direct care to the patient.

Another possibility is to require a physician to be on site at the patient's location and regard the telemedicine service as a “consultation.” Unfortunately, attempting to circumvent current licensure hurdles by regarding all telemedicine interactions as “recommendations” or “consultations” has several disadvantages: (1) It is dishonest about the true nature of telemedicine and will probably not stand legal scrutiny in most states’ courts. (2) It requires a local referring physician who keeps full authority and legal responsibility over the patient. (3) It restricts patients’ autonomy insofar as their interacting with physicians at their convenience and choice. (4) It hinders a productive, cost-effective business model and inhibits the uptake of telemedicine.

The issue of liability in telemedicine must also be considered. Rendering care exposes the provider to multiple legal liabilities, such as malpractice, informed consent, confidentiality, and data protection. In the United States, such exposure could negatively determine the fate of this emerging industry.

This having been said, the reflexive malpractice fear should not be exaggerated, and reasonable solutions are available. First, practicing telemedicine requires appropriate coverage, and several insurance plans are now available for telemedicine. Second, professional associations should actively canvas the standard of care for telemedicine in their respective specialties and issue comprehensive standards and guidelines, which in turn could provide significant protection for both the patient (by improved safety) and the provider (in legal contention). Third, a robust training program should be instituted to reduce telemedicine-related risks and to ensure quality. Fourth, informed consent should be addressed using IT tools. Similarly, data protection and confidentiality should be guaranteed according to norms in other sensitive industries (e.g., banking).

In summary, I obviously support the progress of telemedicine. Cyberspace has become an important territory for patients, practitioners, medical institutions, and policymakers. Thus abstention is no longer a valid option.

Legal progress must follow the accelerated use of IT in medicine, primarily by the removal of the licensure impediment. Armed with realistic legal insights, both physicians and entrepreneurs should continue to move forward in producing telemedicine-related guidelines and demonstration projects to validate benefits and contain risks and eventually reach enhanced, accessible, and more efficient medical care.