American Journal of Law & Medicine

Telemedicine and integrated health care delivery: compounding malpractice liability.


Telemedicine became a significant part of the health care equation long before we realized what it was or how important it will be in the furore. Telephone discussions and consultations between health care providers have been a part of medical practice since Alexander Graham Bell gifted society with telephones.(1) Furthermore, who among us has not been transfixed watching and learning about open heart surgery on cable television?(2) Propelled by the information superhighway and the breadth of emerging computer and communication technologies, telemedicine will change the face of medicine and methods of interaction between providers and patients.(3) Access, quality and cost of health care may all improve, but not without the sacrifice of some time-honored norms in medical practice.(4)

The changes telemedicine will bring to medical practice exacerbate the changes deriving from the proliferation of managed care integrated delivery systems (IDSs) and the contraction of the health care industry.(5) The solo practitioner revered by Norman Rockwell is rapidly becoming extinct, superseded by groups of providers employed by or engaged in contractual partnerships with one or more integrated managed care plans.(6) The community hospital of the mid-twentieth century has merged, remerged and now emerged as part of an organized network of hospital services, often affiliated with one or more health plans.(7) The traditional Blue Cross and Blue Shield plans spun off for-profit managed care plans that, along with provider partners, are vibrant and successful, while the gutted parent companies languish, relics of the past.(8)

This Article considers how theories of medical negligence might be applied in the context of telemedicine and integrated delivery health plans. Part Two summarizes the history of telemedicine, its increasing breadth of application and opportunity and promise for the future. Part Three reviews traditional negligence principles and precedents and demonstrates how they might be applied when a telemedicine interaction results in negligence and harm to the patient. Part Four discusses evolving theories of shared liability applicable to health plans and managed care entities. Finally, Part Five demonstrates how shared liability theories will be applied to situations involving telemedicine technologies.


Telemedicine's "simple, but serviceable" definition is the use of telecommunication to diagnose and treat a patient.(9) Telemedicine encompasses a panoply of technologies and communication modalities that allow health care providers to connect with, examine, counsel and advise patients about treatment options,(10) These include teleradiology and other teleimaging diagnostics,(11) telesurgery and robotics,(12) video and Internet/e-mail conferencing,(13) transmission of electrocardiographic and other physiological data by telephone, telecommunications, or Internet lines(14) and "telehealth" education via the Internet and cable television.(15) Although many of these examples rely on relatively recent communications technologies, telemedicine escaped the bounds of the simple telephone call at least thirty years ago and has already acquired an impressive history.


Although isolated telemedicine experiments date back to the early 1960s,(16) telemedicine began with the space program. One of the National Aeronautics and Space Administration's (NASA) pivotal concerns was the medical monitoring of astronauts.(17) This concern began with the earliest Mercury and Gemini flights, developed through the Apollo Moon Program and continues today with space shuttle and MIR missions.(18) NASA's scientists created telemetric technologies that allowed the long-distance measurement and transmission of physiological data through space.(19)

While refining the use of telemetry in space, NASA facilitated the terrestrial use of this and other telemedicine technologies domestically and internationally? In the mid1970s, NASA entered into a collaborative venture with the Indian Health Service and the Papago Indian Tribe.(21) This project borrowed technology from the space program that enabled mobile health unit practitioners to telecommunicate with, and transfer data to, specialists at a distant public health hospital.(22) The program's evaluation concluded that mobile health workers delivered a comparable quality of care as would have been supplied through an on-site consultation.(23) In Alaska, a similar program used NASA satellites to supply a consistent method of voice communication and linkage by which local health aides and nonphysician providers could access information and consult with physicians.(24)

In recent years, the space program fortified and enhanced satellite technology and capacity.(25) Government and disaster management organizations have used the satellite-based communication system to provide medical aid and coordinate relief efforts in cases of natural disaster(26) and war.(27) In the 1990s NASA inaugurated the "spacebridge" to Moscow, an international telemedicine project that included specialist consultation in a variety of disciplines, medical education opportunities for physicians from Russia and the United States, and emergency medical services coordination and consultation.(28) The newest iteration of the spacebridge project has incorporated implements in computer technologies and networks to diversify and enhance the exchange of medical information and consultation.(29) The new spacebridge to Russia provides for the encoding of medical information and patient tests in digital files that are then transmitted over the Internet and discussed in videoconferencing sessions.(30) The spacebridge allows physicians in Moscow to teleconference with faculty from several tertiary care centers in the United States.(31)

With the ping-ponging of signals around the globe commonplace, satellite communication technology is becoming available and financially accessible to the private sector.(32) In addition, the explosion of advances in computer technology, including the transformation of the Internet, has exponentially increased telemedicine applications in terms of variety, speed and capacity.(33) Audio, video, images and data beam instantaneously from site to site; furthermore, transmissions can be stored and forwarded without degradation.(34) As familiarity with the technology grows, a broader cross-section of both providers and patients is interested and willing to use it to facilitate health care interactions.(35) Finally, the technology dovetails nicely with the increasing regionalization and integration of health care systems.(36)


Telemedicine is no longer limited to transmission of hazy images and telemetry data from the remote, isolated Alaskan village or orbiting spacecraft. Highly sophisticated communication and computer systems provide high-resolution images,(37) "crunch" complex data,(38) have analytic, even artificial intelligence, capacity,(39) and allow access to real-time, delayed and stored information.(40)

Telemedicine is becoming an integral part of health care delivery in diverse settings.(41) It is breaking down boundaries between different types of health care providers, revolutionizing rural health care delivery, improving and facilitating care for underserved and difficult to manage populations and enhancing discourse between patients and providers. There is also a growing telehealth movement.

A large health care system, Allina Health System, based in Minneapolis, uses physician extenders to triage patients presenting with emergency conditions.(42) Using telemedicine, these first-line providers consult with specialty physicians, treat patients more quickly and coordinate care more efficiently.(43) It uses telemedicine technology to facilitate specialty consultations, medical education, medical information storage and transmittal and administrative efficiency.(44)

The University of North Carolina (UNC) uses telemedicine technology to provide pediatric cardiology consultations to neonates in hospitals in its area, thereby avoiding delays in patient care that occured when echocardiograms were sent to UNC for review.(45) Previously, such subspecialty care was often unavailable to patients without easy access to an urban, usually university-based, medical center.(46) Now, with telemedicine, one subspecialist can serve several hospitals and locales, providing teleconsultations to patients without ever leaving the university medical center.(47) Recently, UNC broadened the scope of its program by entering into an agreement with the University of Chile to provide neonatal cardiac evaluations by telemedicine for Chilean newborns.(48)

A number of telemedicine programs have been designed to focus on the needs of patients in rural America.(49) This population is sparsely distributed over large geographic areas, with little or no public transit.(50) Moreover, large populations of elderly, who are more likely to have health problems and transportation difficulties, live in rural areas.(51) The need for telemedicine in the rural setting is compounded by the scarcity of rural health care facilities and providers.(52) Telemedicine is a way providers can serve this traditionally underserved population.(53) Implementation of telemedicine technologies in rural settings is just beginning,(54) but recent incentives, notably the availability of reimbursement under Medicare, are expected to spur the use of telemedicine in rural areas.(55) Additionally, investment in rural telemedicine is boosted by managed care IDSs that seek to increase their service areas and market share.(56)

Prison inmates are another underserved population receiving the benefits of telemedicine programs. Numerous prisons have adopted telemedicine to deliver care to this difficult to manage population.(57) Using interactive video and consultation, doctors deliver care more rapidly.(58) Moreover, prisoners appear satisfied with the care received, and early studies indicate that the programs are cost efficient.(59)

Home health agencies and providers also use interactive video links to enhance care for home-bound patients.(60) This growing segment of the health care industry, and contributor to increasing costs, previously depended on nurses and other providers to visit physically and care for the patients in their homes.(61) However, with the advent of telecommunications, medical technology and computer devices, many providers now offer services without a visit.(62) Using telemedicine technology, video visits and monitoring of vital signs can be accomplished electronically, medication compliance can be verified and patient education can be enhanced.(63) Telemedicine is also cost effective because it eliminates providers' costly travel time.(64) In addition, patients are empowered through their interaction with the physician rather than merely receiving treatment.(65)

The advent and global availability of the Internet produced an explosion of the telehealth movement. The Internet is replete with medical information at every level of sophistication.(66) Digital models and virtual humans allow students to study and research anatomy, physiology and pathology.(67) Patients and providers can access scientific peer journal articles,(68) government documents relating to health care issues(69) and extensive disease-related information provided by advocacy groups.(70) A vibrant network of chat groups for patients, their family and friends exists as well.(71) These groups empower patients to learn about and manage their afflictions, facilitate the exchange of information among patients similarly afflicted and even enable them to discuss cases with physicians and obtain referrals online.(72)


As telemedicine applications broaden and diversify, the "simple, but serviceable"(73) definition of the past requires some retooling.(74) This redefinition process clarifies both the characteristics and the functional attributes of modern telemedicine. The baseline characteristics of telemedicine include: the geographic separation between the provider and patient during the clinical encounter or between two providers collaborating on the patient's behalf; the use of telecommunication or computer technology to enable, facilitate or enhance the interactions between the parties; the development of protocols and normative standards to replace those of the traditional face-to-face contact; and sufficient staffing and infrastructure to support the telemedicine technology.(75) One leading proponent of telemedicine has identified three functional areas in this growing field: (1) decision-making aids, (2) remote sensing and (3) collaborative arrangements for the management of patients at a distance.(76)

Decision-making aids encompass many of the information resources available electronically(77) as well as computer systems and programs that apply the information to a specific patient's symptom complex and history.(78) This artificial intelligence type of searching and analysis is further linked to expert physicians around the world who can then consult about the patient after receiving images of the patient's physically visible abnormalities, test results and diagnostic studies by high-speed Internet connections.(79)

Remote sensing builds on the early telemedicine transmission of electrocardiogram and pacemaker signals over the telephone lines.(80) However, the sophistication of the diagnostic-testing modalities is compounded by the sophistication of the communications and computer capabilities,(81) Complex images are transmitted in computerized digital format,(82) compared with a library of similar images and then subjected to expert review if necessary and desired,(83)

The advances made in remote-sensing capabilities promote collaborative patient management, the third functional attribute of telemedicine.(84) Interactive video workstations allow doctors to collaborate and diagnose from a distance.(85) One study allowed physicians to view patients with Parkinson's disease, a degenerative neurologic disease that impairs mobility, thereby allowing physicians to provide proper assessment and care to patients outside of a metropolitan area without requiring them to travel to the physicians' offices.(86) Collaboration among physicians is enhanced by efforts to link diverse sources of information and expertise in an integrated fashion to provide greater collaborative possibilities.(87)

Armed with a broader and more encompassing definition, promoters of telemedicine have redesigned its window of opportunity, and telemedicine is now poised to become an integral part of the health care industry rather than merely an interesting but limited curiosity.(88) The opportunity for telemedicine's expansion comes at a perilous time. The health care industry is beseiged by relentless, often well reasoned complaints that it is too costly, provides inadequate access and fails to deliver a consistent and satisfying quality of care.(89) For telemedicine to flourish and achieve a place in a competitive market, its promoters will have to demonstrate that it can improve access, cost and quality.(90)

Perhaps the greatest strength of telemedicine lies in its ability to conquer distance in both geographical and temporal terms. Capitalizing on this strength, Congress has supplied incentives to enhance telemedicine access for two largely underserved populations: rural communities and the elderly.(91) There is a risk that by removing geographic barriers, telemedicine will succeed in unleashing an unrealized demand for health care services from those previously unable to obtain access.(92) Although this would satisfy the policy aim of improved access, it may also result in an increased volume of health care services and a net increase in cost.(93) Such cost increases could slow the continued growth and stature of telemedicine.

In addition to cost concerns, telemedicine raises quality-of-care questions.(94) There is a potential that patients will be inadvertently harmed by providers and telemedicine systems.(95) Such harm may result from negligence by telemedicine providers who, like in-person interaction, may fail to deliver care that meets recognized and accepted standards.(96) Many more providers will be involved in the patient's care.(97) This trend could potentially lead to confusion as to who is accountable for individual medical decisions as well as the overall care of the patient. Alternatively, the harm could result from malfunctions or a poorly designed technology or communication network.(98) Any of these scenarios would result in potential liability under the well-established tenets of medical malpractice law.


The traditional medical negligence doctrine requires that the plaintiff-patient prove that the defendant-provider had a duty toward and implicit contract with the plaintiff as a result of an established physician-patient relationship.(99) The plaintiff must then prove, generally by a preponderance of evidence, that the defendant breached this duty by failing to conform to the accepted standard of care and that, as a direct result of the breach, the plaintiff sustained harm with ascertainable damages.(100) Telemedicine challenges this doctrine by reconfiguring the physician-patient relationship and the duty that flows from that relationship. In addition, telemedicine may qualitatively change the standard of care.


In the traditional medical negligence case, the plaintiff must establish the existence of a physician-patient relationship.(101) Typically, the alleged negligence occurred within the temporal boundaries of an episode of care delivered by an identified physician.(102) Furthermore, any additional consultations with specialists occurred in a sequential pattern, each occupying a distinct quantum of patient and provider time.(103) However, in the case of a telemedicine interaction, the temporal boundaries are more fluid.(104) Moreover, the intervention may involve multiple physicians and consultants simultaneously,(105) or involve stored and forwarded images and data that the primary or secondary providers review at a later, undefined time. …

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