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

contact is not a physician, then the court is more likely to find that the local
practitioner has become the borrowed servant of the telemedicine practitioner and
that the telemedicine practitioner is responsible for all aspects of the patient’s care.
This would be moderated if the local contact was under the supervision of another
physician, who would then have primary legal responsibility for implementing the
telemedicine practitioner’s recommendations.
Physicians who conduct remotely controlled surgical and medical procedures will
have the same legal duties as they would if they were in the operating room with
the local physician. At least for the next several years, until these procedures
become commonplace, remote physicians can also assume that they will be held
liable for problems with the equipment and the other aspects of the procedure that
deviate from ordinary practice. This expanded liability mirrors the situation in
experimental medicine, where the supervising physician must ensure the integrity of
the entire process. They may be able to counterclaim against the manufacturers of
the equipment, but these counterclaims may be limited if it was not specifically
manufactured for telemedicine. For example, if a standard desktop computer were
used as a monitoring terminal for a remote surgical procedure, the manufacturer
could reasonably claim that this was not an intended use and that it should not be
responsible for personal injuries flowing from the monitor’s failure.
b) Being the Local Contact
Traditional consultations are premised on a relationship of trust between the
primary physician and the consultant. If either does not know the other, or does not
trust the other, these consultation become problematic. Putting aside telemedicine,
many MCOs are already raising this issue by forcing primary care physicians to
consult with specialists they know nothing about, and putting consultants in the
position of not knowing the capabilities of the primary physician. This will be
exacerbated by telemedicine. Local practitioners could be in the same position as
the consumer as regards determining the competence and license status of the
remote practitioner, with the caveat that the courts are likely to find that there is a
duty to ensure the competence of the remote consultant.
Practitioners who work with remote consultants, especially those across state lines,
should document the training and licensure of the consultant as part of their office
records. This does not need to be duplicated in each patient’s record, but it must be
available to show proper diligence in screening the consultant. There should also be
a record of the consultation and any recommendations of the consultant. This could
be in the form of ordinary chart notes and a letter from the consultant. If the
consultation is conducted through a computer, then the session could be recorded by
the computer and stored as an electronic file. These files can be compressed and
transferred to a CD-ROM that is kept with the patient’s other medical records.
c) Being the Remote Consultant
255