Home > Journals > WMLR > Vol. 61 (2019-2020) > Iss. 5 (2020)
William & Mary Law Review
Abstract
Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is videoconferencing with a doctor who examines the rash remotely and makes a diagnosis.
Through advances in telemedicine, the scenario described above is becoming an increasingly common occurrence, and, for many, a life-altering opportunity. Yet many legal uncertainties exist in the realm of telemedicine, particularly in regard to medical malpractice. Are doctors held to the same standard of care as they would be in traditional medicine? What standard of care should a court look to when a doctor, practicing over state borders via telemedicine, finds himself enmeshed in a malpractice suit? When is the physician-patient relationship established for the purpose of determining malpractice liability? These uncertainties create potential barriers to the widespread adoption of telemedicine services. If these barriers are to be overcome, legislative action must establish uniformity and certainty.
Telemedicine has become the answer to that desperate question of where to seek medical consultation and care, a question that has long plagued rural American communities. Through telemedicine, doctors are able to virtually see patients “face-to-face” using video communication systems. Healthcare professionals can monitor high-risk patients’ health parameters over long distances, diminishing the need to travel for routine testing. In short, telemedicine presents the United States with a number of benefits, from reducing the costs associated with traditional medical services, to providing increased access to medical services in underserved communities.
Despite the promising potential of telemedicine, the American health system has been relatively slow to adopt this emerging technology, though the utilization of telemedicine services increased in recent years. One of the reasons for this slow uptake is the traditional lack of healthcare coverage for a broad range of telemedicine services. This barrier gradually dissipated over the last decade as coverage expanded. As the usage of telemedicine increases, the legal uncertainties that characterize telemedicine malpractice should be resolved in order to attract the greatest number of skilled medical professionals. Without legal certainty, or by the adoption of overly plaintiff-friendly precedent and legislation, these practitioners may be disincentivized from participating.
This Note argues for uniformity in the physicians’ standards of care for the purpose of determining malpractice liability, arguing for an approach that holds doctors practicing telemedicine to a national standard that considers the differences between virtual and in-person care. This Note additionally argues that the factors which establish the physician-patient relationship for the purpose of determining telemedicine malpractice liability should be clearly delineated through legislation. Part I will lay out the elements that plaintiffs must establish in a medical malpractice case, identify the major differences in how jurisdictions determine the appropriate standard of care, and discuss differences regarding the establishment of the physician-patient relationship for malpractice cases. Part I will also address the negative consequences of the lack of uniformity regarding telemedicine. Part II will argue for uniformity and clarity, proposing that Congress should enact legislation which establishes or encourages an appropriate telemedicine standard of care and clarifies the formation of the physician-patient relationship in such circumstances. Part III will address several avenues of federal action that could institute the desired changes to telemedicine malpractice standards, balancing them against each other to determine the most practical approach.