Are Tele-Medicine Health Care Providers Subject to the Same Laws and Standards as In-State Health Care Providers?
Like most other businesses, the practice of medicine is moving toward the digital and virtual worlds. Health care providers now have the ability to see and treat patients from miles away and do such things as read radiology studies (x-rays, CT scans, MRIs, CTAs) remotely, while sitting at home hundreds of miles away. Surgeons can control surgical robots in hospitals across the country and thus perform surgery on patients that they cannot physically touch. Many people have questioned whether a traditional physician-patient relationship exists during such encounters and whether a patient’s rights are impacted by these changes. For example, many have asked whether physicians still have the same type of duty to their patients as they do when treating the patient in person. Others have asked which state’s laws would govern an allegation of medical malpractice: the laws of the state where the patient was at the time the care was rendered or the laws of the state where the physician was located at the time he provided the care/consultation? In many instances, this distinction can prove to be critical for the patient.
For example, some states may have more stringent caps on the rights of patients to recover monies for pain, suffering and emotional distress than other states. In California, the cap in a wrongful death case on pain, suffering and emotional distress is $250,000, whereas in Maryland, the cap could be as high as $900,000 in some circumstances. The ability to claim the higher number is therefore critical.
When a telemedicine provider lives in another state, the proper forum state for the case may also be an issue. As with any lawsuit, a state’s long-arm statute must be broad enough to permit the exercise of personal jurisdiction over the out-of-state defendant. The plaintiff must argue that the defendant has purposefully made himself available in the patient’s home state for the purposes of providing medical care, and therefore, has satisfied the minimum contacts with the patient’s home state necessary to give that state jurisdiction over him.
Still other potential problems with telemedicine abound. Is the standard of care that is applicable to the care the same for in-state providers vs. out-of-state providers? During an in-person examination, health care providers are able to use all of their senses to evaluate a patient (sight, touch, hearing, smell) and do such things as take vital signs, move the body parts, test reflexes, assess the mental state and listen to the heart, lung and organs. With remote consultation, the health care provider cannot do all of these things, especially if the consultation is over the telephone or email. Should these providers be governed by the same standard as in-person examiners?
Finally, patient safety could be impacted as a result of this incomplete information. Will tele-medicine lead to an increase in missed diagnoses and inappropriate treatment? Will the difficulties in communicating remotely result in the lack of conveyance of important information between the patient and physician? Could improper medicines be prescribed. These are all critical questions that remain unanswered within the field of medical malpractice across this country as the health care industry continues to expand into the digital and tele-medicine age.
At STSW, however, our lawyers have successfully confronted this issue on several occasions, most notably with tele-radiologists who have performed interpretations of radiological studies for Maryland patients while physically located out-of-state. In such instances, we have been successful in arguing that Maryland laws govern and jurisdiction may be had in this state as opposed to the state where the health care provider lives and/or provided care to the patient. If you or a loved one have suffered an injury as the result of medical malpractice or medical negligence and you believe tele-medicine contributed to the injury, call our team for a free consultation at (410) 385-2225.