American Journal of Law & Medicine

Regulating medical practice in the cyber age: issues and challenges for state medical boards.

I. INTRODUCTION

"On the Interact, nobody knows you're a dog," says one canine to another as they sit in front of a computer in the classic New Yorker cartoon.(1) This can also apply to those who seek or provide medical care online. On the Internet, nobody knows if you're male or female, elderly or adolescent, fit or obese, hirsute or bald, virile or impotent.(2) In addition, in many cases, nobody knows if the "physician" or "pharmacist" on the other end of the line is a properly licensed physician or pharmacist, where they are located, what the knowledge level or training of the consulting practitioner is, or whether the medications being shipped are of the appropriate level of quality, potency or dosage.(3) And, if the ease with which one is able to procure pharmaceuticals online is any indication, there are plenty of unscrupulous entrepreneurs selling drugs on the Internet who do not appear to care.

The Internet promises to transform the way the practice of medicine is conducted in the new millennium. As the administrative bodies responsible for overseeing the practice of medicine, state medical boards are straggling to find ways to ensure that unscrupulous and unsafe practitioners operating online do not harm those living within their jurisdictions. This Article examines the effect computers and the Internet have on the ability of state medical boards to regulate the practice of medicine, and the responses at the state and federal level to these technological developments. Part I briefly discusses the foundations of the state power to license and regulate medicine. Part II discusses the adoption of technology in society and how it has benefited the physician-patient relationship. Part III describes how computer and Interact technology are used in telemedicine and cybermedicine interactions, and the concerns each raises with regard to medical practice standards. Special focus is given to the Internet pharmacy industry. Finally, Part IV analyzes the state and federal legislative and regulatory actions taken to protect the public health and welfare from unlicensed and substandard medical practices on the Internet, and describes how the challenges of regulating Internet medicine raises new questions concerning the ability of state medical boards to continue traditionally-held responsibilities for regulating medical practice.

II. REGULATION OF THE PRACTICE OF MEDICINE(4)

The right of states to regulate the practice of medicine is founded upon constitutional grounds and traditional interpretations of states' rights. As the power to regulate the health professions was not specifically entrusted to Congress, the Tenth Amendment reserves such power to the states and the people.(5) Under the police power, states have the authority to pass regulations to protect the public health and safety of their citizens.(6) Because of the significant impact that medical practitioners can have on the health and well-being of the population, the licensure of medical practitioners is the consummate example of a state's use of the police power to achieve this goal.(7)

In 1889, the Supreme Court addressed the question of whether states had the power to license medical practitioners in the case of Dent v. West Virginia.(8) The Court upheld the state's right to require licensure to engage in medical practice, holding that the establishment of minimum standards for licensure did not violate an individual's property rights as protected under the Fourteenth Amendment.(9) While the Court felt that "[i]t is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose,"(10) it also believed that the state, in its role of protecting the public, had the right to establish reasonable standards for practice. According to the Court:

 
   There is no arbitrary deprivation of such right where its exercise is not 
   permitted because of a failure to comply with conditions imposed by the 
   State for the protection of society. The power of the State to provide for 
   the general welfare of its people authorizes it to prescribe all such 
   regulations as, in its judgment, will secure or tend to secure them against 
   the consequences of ignorance and incapacity as well as of deception and 
   fraud. As one means to this end it has been the practice of different 
   States, from time immemorial, to exact in many pursuits a certain degree of 
   skill and learning upon which the community may confidently rely, their 
   possession being generally ascertained upon an examination of parties by 
   competent persons, or inferred from a certificate to them in the form of a 
   diploma or license from an institution established for instruction on the 
   subjects, scientific and otherwise, with which such pursuits have to deal. 
   The nature and extent of the qualifications required must depend primarily 
   upon the judgment of the State as to their necessity.(11) 

The Court's decision is grounded in the belief that the general public was not able to assess effectively the qualifications and competence of medical practitioners.(12) The patient's lack of knowledge and understanding necessitated the types of protection provided by an evaluation and certification conducted by a state body with the requisite expertise to assess the physician's education and training.(13) According to the Court:

 
   "Every one may have occasion to consult [a physician], but comparatively 
   few can judge of the qualifications of learning and skill which he 
   possesses. Reliance must be placed upon the assurance given by his license, 
   issued by an authority competent to judge in that respect, that he 
   possesses the requisite qualifications."(14) 

As the above quotation from the Supreme Court indicates, medical boards sought to perform their public protection role through the enforcement of licensure laws that controlled entry into the profession and ensured that those who wished to be physicians possessed a baseline level of knowledge, skills and training.(15) Critics of licensure laws argue that while these laws may set standards with the goal of protecting the public from unqualified or incompetent practitioners, they also serve the purpose of protecting the interests of the professionals by limiting competition.(16) These critics also charge that through the establishment of cumbersome and costly licensure processes, the current licensure procedures unfairly restrict the mobility of otherwise competent professionals.(17) These issues have been debated in every state that has examined the issues of interstate telemedicine licensure and cybermedicine practice, and this deliberation has led to varied approaches to balancing the interests of access to care and public protection.

III. THE INTERNET AND HEALTH

"You don't need an expert to tell you we're living in the middle of a technological revolution."(18) Computers have transformed American society, and the rapidity with which Americans have embraced this technology is striking. In 1997, almost 80 million adults had computers in their homes,(19) compared to 48 million just four years earlier.(20) The impact of computer technology on business, the economy, and on peoples' everyday lives rivals the changes brought about by the telephone and the automobile.(21)

One of the primary reasons for the growth in computer sales and use in the U.S. in recent years is the advent of the Internet.(22) The explosive rate at which the Internet has been adopted in American society far outstrips that which accompanied the introduction of the computer, the television and the radio.(23) By mid-1999, over 100 million adults in the U.S. were using the Internet, up from 65 million the previous year(24) and 43 million the year before.(25) By 2003, the number of adults online is predicted to grow to 177 million.(26)

While individuals(27) go online to do everything from exchanging e-mail and greeting cards,(28) to viewing the world's great art treasures,(29) to listening to sporting events,(30) to auctioning and buying anything under the sun,(31) one of the principal reasons people use the Internet is to pursue health information.(32) It is estimated that, in 1999, as many as seventy million Americans used the Internet to obtain health information(33) from sources such as MEDLINE,(34) the National Library of Medicine's online database of over eleven million references to health science journal articles.(35) The Internet also provides those suffering from debilitating illnesses forums through which they can connect with and receive support from others struggling with similar difficulties.(36) It is becoming more frequent for "cyber-assisted patients"(37) to search the Internet for information prior to consulting a physician about their problem,(38) and to arrive at their doctors' offices with web site printouts in hand, ready to discuss their treatment options.(39) This approach is encouraged by many health care professionals and advocates, as access to accurate, timely and in-depth information via the Internet can help narrow the wide medical knowledge gap existing between physicians and patients, encourage greater dialogue about the treatment process, and effectuate the goal of ensuring that a patient's consent to treatment and procedures is truly informed.(40)

An increasing number of the usually technology-averse physician population are experiencing the "epiphany"(41) that computers and the Interact will be an integral part of health care delivery in the twenty-first century.(42) Many physicians already use computers to do such administrative tasks as scheduling, office management and billing. A significant, and rising, population of doctors exchange e-mail with their patients.(43) A May 1999 study by Internet health giant Healtheon found that one-third of physicians were using e-mail to interact with their patients, up 200% from the year before and up over 1000% from 1997 levels.(44) To assist physicians eager to begin e-mail dialogues with their patients, the American Medical Informatics Association established guidelines for physician-patient interaction via e-mail in 1998,(45) and the American Medical Association (AMA) is investigating whether to create its own doctor-patient e-mail guidelines.(46)

However, insofar as possible uses for the Internet in healthcare delivery is concerned, interactions aimed at improving consumer knowledge and communication between physicians and their patients, as described above, are only the beginning of the story. Those who are even remotely cognizant of the innumerable high-tech gadgets, gizmos and great strides that are being unveiled on a daily basis would not be so imprudent to admit publicly to believing that "everything that can be invented has been invented."(47) Therefore, it is impossible to state with any certainty what specific challenges arising out of new technologies and medical discoveries state medical boards will face twenty years or even five years in the future. However, as the cases of telemedicine(48) and cybermedicine(49) illustrate, there are already many interactions which can be conducted on the Internet that are "totally distance-insensitive"(50) and that raise both significant public protection concerns, and serious questions about the ability of individual state medical boards to continue to fulfill their police power responsibilities of protecting against unlicensed practitioners of dubious quality.(51) As one commentator states, "In the most stark terms, the dilemma pits technological developments, which literally enable health care workers to offer their services across the nation, against the necessarily parochial role played by states in monitoring the quality and the conduct of practitioners who provide care to their citizens."(52) Recent efforts to address the challenges raised by telemedicine and cybermedicine suggests that, for state medical boards to execute their role as protectors of the public from unsafe and/or unlicensed medical practice,(53) increased collaboration between state medical boards, and greater reliance upon outside state and federal administrative agencies and law enforcement bodies, may be required.

The discussion that follows examines the development of telemedicine and cybermedicine, the public protection issues raised by each, proposed and enacted legislative, administrative and judicial responses to these new means of health services delivery, and current activities at the federal level that may effect the role of state medical boards in regulating medical practice in a technology-driven environment.

IV. COMPUTERS, THE INTERNET AND THE PRACTICE OF MEDICINE

A. TELEMEDICINE

Telemedicine is no longer an experiment. It is a necessity which provides a boon to mankind.(54)

A simple definition of telemedicine is "the use of electronic communication and information technologies to provide or support clinical care at a distance."(55) While telemedicine in some form or another has been performed for at least thirty years,(56) and in the broadest sense of the definition, can include the use of telephones and facsimile machines to transmit health information, it is generally performed today through the use of computer-based systems linked together by modems.(57) For example, a physician at an urban teaching hospital could be connected to a rural clinic hundreds of miles away via an interactive television system, and, with the help of a health care provider at the rural location, utilize an electronic stethoscope or othoscope equipped with a small camera to perform an examination on a patient. …

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