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...ISSUES: PERSONAL JURISDICTION, CHOICE LAW, AND RECOGNITION AND ENFORCEMENT OF JUDGMENTS A. Personal Jurisdiction B. Choice of Law 1. Procedure versus Substance 2. Approaches to the Choice of Law Problem C. Choice of Law Contract Provisions D. Recognition and Enforcement of Judgments IV. WHICH LAW WILL APPLY IN TELEMEDICINE-RELATED CLAIM? A. Medical Malpractice Claim B. Physician Licensure Claim C. Federal Statutory Claim V. CONTRACTUAL CHOICE OF LAW/FORUM PROVISION VI. CONCLUSION
I. INTRODUCTION
Telemedicine is a quickly developing means of health care delivery across the United States as well as around the world. (1) This technical marvel allows patients from the most remote locations in the world to be treated by specialty physicians located in more urban areas by means of real-time encounters that vary little from face-to-face visits. (2) While the potential benefits of telemedicine are doubtless, there is a great deal of doubt regarding how courts, both internationally and within the United States, will handle the legal issues that are sure to arise from these telemedicine consultations. (3)
Most likely, we will--if we have not already--all come face-to-face with health care services being delivered from a distance, that is, telemedicine. (4) Physicians at the University of Texas Medical Branch (5) have found that, in many instances, telemedicine can be a more efficient delivery system than traditional care for all the parties involved. (6) For instance, telemedicine can increase employer satisfaction by allowing employees to remain in the workplace for treatment, thus increasing productivity. (7) Surprisingly, these physicians have also found that patient satisfaction remains high by supplementing local care with these additional services. (8)
In order to get an appreciation for the potential effects of telemedicine, it is beneficial to look at a real life example. In June 2003, a thirty-five year old meteorologist at the National Science Foundation's Amundsen-Scott research station in Antarctica began experiencing chest pain. (9) The station's primary care physician suspected that the patient had suffered a myocardial infarction, or heart attack, but without the help of a cardiologist the primary care physician could not be certain about the diagnosis or its possible severity. (10) The primary care physician, therefore, arranged a telemedicine visit with Masood Ahmad, M.D., a professor of cardiology at the University of Texas Medical Branch in Galveston, Texas. (11) Specialized equipment allowed Dr. Ahmad to see and to talk with both the primary care physician and the patient, as well as to analyze ultrasound pictures of the patient's heart on a real-time basis despite being more than halfway across the globe. (12) Dr. Ahmad piloted the primary care physician through the entire procedure by guiding his movements and adjusting the equipment in order to get different views of the heart. (13) Through telemedicine, the requisite specialty physician was able to diagnose and treat the patient as well as oversee his rehabilitation. (14) While this may not sound critical to many, in this case it was a life or death issue. This consult took place in the dead of the Antarctic winter in an environment consisting of temperatures as low as one hundred degrees below zero. (15) Without this technology, the patient would have to be air-lifted out, thereby risking the lives of the patient and the would-be rescuers, not to mention the hundreds of thousands of dollars in potential costs. (16) While all telemedicine consults may not involve life or death situations or such extreme conditions, they all involve a heightened level of potential cost control, increased access to care, and decreased travel burdens, such as cost, time, and stress. (17)
The above example helps illustrate the amazing potential for health care delivery worldwide through telemedicine. However, in order to protect this potential, it is important for telemedicine providers, patients, and policymakers to begin addressing the potential legal ramifications that may extend to this form of health care. (18)
In order to further illustrate the potential ramifications involved with telemedicine let us go back to the Antarctica example. Let us assume that the treatment was not a success. Would the patient be able to bring a medical malpractice claim against the specialty physician, primary care physician, or employer? What if the problem stemmed from a malfunction in the equipment, could he bring a products liability claim?
These are all interesting questions, but ones that usually can easily be analyzed and answered by looking to the controlling law involved in each case. This leads us to the real problem: which law applies in a telemedicine consultation across either state or foreign borders, and furthermore, who would have jurisdiction over such claims? In the Antarctica example, this may seem like a pretty simple solution since Antarctica does not have its own laws and because a most significant contacts analysis would likely result in application of Texas law. (19)
However, these questions get much more difficult with some very slight changes to the hypothetical. For example, what if the patient was instead a meteorologist in northern Alaska? Would the Texas physician be subject to the laws of Alaska in regards to a medical malpractice claim? Would the Alaskan primary care physician be subject to Texas law? With regard to state regulatory claims--does the Texas physician have to be licensed to practice medicine in Alaska?
The international nature of many telemedicine matters further complicates many telemedicine consultations. Since there are no international treaties or global agreements that deal with telemedicine, (20) these same choice of law and jurisdictional questions would also have to be addressed on an international basis. Therefore, depending on the country in which the patient is located, telemedicine providers may be opening themselves up to insurmountable liability problems. (21)
Despite the looming problems for telemedicine participants, a great deal of information is not available to answer these questions. (22) In 1999, a Department of Health and Human Services science panel reported that "[t]he extent and nature of liability associated with IHC [Interactive Health Communication] applications are unclear." (23) The report explains the lack of clarity is especially true for "more sophisticated applications" such as telemedicine and that future legal actions and case law will have to provide some clarity on these issues. (24) As of February 2004, no court--in or outside of the United States--has faced the potential problems of telemedicine consults between unrelated entities. (25) Basically, the liability issues involved in mixing health care with telecommunications has yet to be addressed. (26) Because the court system has not dealt with these issues, it is necessary to take a more proactive stance to help providers predict the potential legal ramifications within the telemedicine industry.
Part I of this Comment will define "telemedicine" and "telehealth" and discuss the potential effects these services may have on various health care delivery systems. This Part will also discuss some of the potential legal claims that may affect telemedicine and its delivery.
Part II discusses procedural issues that will need to be addressed when a legal claim involving telemedicine is brought before a foreign or domestic court. This Part will investigate the application of personal jurisdiction in similar claims as well as the different methods that could be used in deciding an impending conflict of laws problem.
Finally, Part III will attempt to analyze these potential claims to help postulate the potential ramifications of conducting telemedicine across various borders. This Part will investigate potential actions using current procedural methods employed by the various court systems for both regulatory and civil cases.
II. GENERAL OVERVIEW OF TELEMEDICINE AND TELEHEALTH
A. What is Telemedicine?
Telemedicine has been defined as "the use of electronic communication and information technologies to provide or support clinical care at a distance." (27) This is distinguished from the broader concept of telehealth, which refers more generally to "the use of telecommunications and information technologies to provide health care services at a distance, to include diagnosis, treatment, public health, consumer health information, and health professions education." (28) Therefore, the area of telemedicine that provides or supports clinical health care (29) is a piece of the more expansive field of telehealth, which covers all health care related issues. (30) This Comment will concentrate on telemedicine, in particular the use of information technologies in the delivery of health care between a physician and a patient. (31)
Telemedicine can be defined a number of ways, but it "is [really] nothing more than the transport[ation] of [health] information from one site to another." (32) In fact, telemedicine is not really its own technology but is "rather a technique for delivering care remotely." (33) For the first time, primary care providers will not be tied to their own region's health care limitations. (34)
Telemedicine can occur through a number of different means, ranging from a simple phone conversation, to video conferencing, to conducting highly technical medical procedures. (35) For example, surgeons in New York City completed the world's first transatlantic surgery. (36) On September 20, 2001, the surgeons were able to successfully remove a patient's gall bladder by utilizing a remote control robot located in Strasburg, France. (37)
Despite the great range of telemedical services currently available, the typical telemedicine service consists of treating and diagnosing a patient by means of telehealth technology (38) and a high-speed internet connection. (39) This delivery method allows a physician to treat a remote patient the same as he would if it were a face-to-face visit. (40) For example, when the patient's local provider places a specially designed stethoscope over the patient's heart, the treating physician is able to instantly check for any abnormalities in the patient's heart rhythm. (41)
B. What Effects Could Telemedicine Have on Health Care Delivery?
In a 2001 letter to President Bush, the Secretary of Health and Human Services, Tommy Thompson, described telemedicine as a method of using technology to help disadvantaged Americans gain access to needed medical care. (42) It is a way to "bridge the gap between the health care 'haves' and 'have nots'" by providing services to rural hospitals, clinics, and schools as well as to urban prisons and homes. (43) The advantages of telemedicine include improved health care access, improved continuity of care, decreased health care costs, enhanced patient education, and improved medical education. (44)
The number of telemedicine programs in the United States increased by 1,500% from 1993 through 1998, and the actual number of telemedicine consults increased more than 3,200% over this same time period. (45) The annual market for telehealth technologies in 2004 has been estimated to be around $380 million with a growth rate of approximately fifteen to twenty percent. (46) Furthermore, the Federal Trade Commission estimated that more than thirty million Americans sought health information over the Internet in 2001. (47)
The increase in utilization of telemedicine services has not been limited to the United States. (48) Telemedicine applications have exploded internationally as well. (49) For instance, all of France's neurosurgeons are linked together so they can read MRIs and CAT scans on patients throughout the country. (50) Norway, also, has an extensive telemedicine network, which has saved its government substantial amounts of money. (51)
Despite the utilization of telemedicine around the world, telehealth has not reached its full market potential. (52) In fact, some commentators have labeled the export of U.S. medical expertise worldwide as "one of the most untapped multi-million dollar resources" in America. (53) This expertise would be especially beneficial in many developing countries where access to primary care physicians is very limited and access to many specialty physicians is almost nonexistent. (54) Telemedicine gives many countries an alternative approach for treating their citizens. (55) For example, a patient could travel from the Middle East to Europe or the United States to see a dermatologist at a cost of over thirty-thousand dollars or that same dermatologist could see the patient at a local clinic through telemedicine for a fraction of the cost. (56) For these reasons, many developing and rural countries are seeking telemedicine as a cost-effective means of improving medical care for their citizens. (57)
C. What Legal Claims Will Affect Telemedicine and Its Delivery?
As with most major commercial endeavors, countless claims could be brought against parties participating in telemedicine, ranging from malpractice to fraud. (58) This is especially true due to the very technical and detailed nature of both the equipment utilized as well as the information transmitted. (59) However, for the sake of time, this Comment will concentrate on three major areas of concern: (1) Physician licensure and governance, (2) Medical Malpractice, and (3) U.S. federal statutory claims.
Physician licensure and governance (60) has been a major area of concern since the development of telemedical services, and it is the area that has had the most discussion within federal and state governments. (61) This issue basically boils down to how much control a government can impose on a physician or other medical practitioner not physically located within its borders. Traditionally, in order to practice medicine in a state, a physician must be licensed in that state. (62) However, in regards to telemedicine, it is unclear whether the practice of medicine occurs where the patient is located,...
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