Public Health Law Map - Beta 5 - Medical and Public Health Law Site

laboratory tests, X rays, and ECGs have been evaluated by physicians who never see
or talk to the patient. As discussed elsewhere in this section, the law has developed
criteria for the legal duties that attach to these relationships, including when a
physician–patient relationship is formed and when the remote physician has a duty to
report directly to the patient.
Some of the current concerns with video and computer-based telemedicine are no
different than they were with traditional telemedicine; the change is that we ignored
them when it was the telephone and we now worry about them when it is the
computer. Foremost among these is the issue of state licensing. Health care
practitioners are licensed to practice medicine by the state, and one state’s license
does not allow practice in a different state. There has been a great deal of concern
about the legal problem of telemedicine over state lines. The concern is legitimate, it
is just not new: physicians and patients have been talking on the telephone across
state lines for as long as they have been using the telephone. This is especially
evident in cities such as Kansas City, where the state line dividing Kansas from
Missouri runs through the middle of the city. Although most physicians in one state
know they cannot set up an office in the other state without getting a second license,
none hesitates in giving patients across the state line advice over the telephone. This
is true in all communities near state lines, although it is technically practicing
medicine without a license because most states regard the location of the patient as
the location where the care is delivered.
Traditional phone consultations and the review of tests and records by consultant
physicians are predicated on there being either an existing relationship with a
physician who was physically present, or that such a face-to- face relationship would
follow the phone conversation if it was a patient asking a new physician for advice.
Patients calling across state lines does not concern state licensing agencies as long as
this is just an adjunct to the primary physical physician–patient relationship that is
within the state where the physician is licensed. In contrast, telemedicine has been
promoted as a way to bring physician services to remote areas without physicians,
and to allow patients to have consultations with specialists that are not available in
their area.
2. Licensure Issues
Medical care practitioners, lawyers, and many other professionals are licensed by the
states, rather than the federal government. Historically, the federal government had
little or no role in the licensing of professionals, with the exception of patent agents
and persons involved in shipping and, later, aviation. This made sense because, at
one time, there were substantial differences in medical practice among the states.
With the advent of modern medical training, national certification of medical schools
and residencies, and national licensing exams, state standards for medical practice
and for licensing have become very uniform, weakening the rationale for state
licensing. (States do differ on whether physicians who have been out of school for
more than 10 years have to retake a certifying examination and in certain other
requirements that can make getting a license much more time consuming in some
251