State laws vary in regulation of teleradiology execution

To the medical community, teleradiology means extending high-quality medical service into underserved areas and expanding medical practice into the 21st century. To the legal community, however, teleradiology brings to the fore issues that have bedeviled healthcare lawyers for years: licensure, jurisdiction, and liability.

While the technological aspects of filmless imaging have continued to advance, many of the practical and legal issues surrounding the practice of telemedicine and teleradiology still present challenges. Some states have updated their legal and regulatory schemes to address new technologies such as teleradiology, but many state legislatures and courts have been slow to grapple with these issues. Although some state legislatures have begun to address questions such as licensure, many have not. The judicial arena, meanwhile, faces a paucity of case law addressing other legal issues raised by the use of teleradiology.

LICENSURE

One of the primary legal issues confronting the teleradiology practitioner who practices across state lines is licensure. When a radiologist at a receiving site in one state interprets an image transmitted from another site, is he or she subject to the licensing requirements of the transmitting site? The American College of Radiology Standards for Teleradiology specify that physicians providing the official interpretation of images transmitted by teleradiology should maintain licensure for provision of radiologic service at both the transmitting and receiving sites (ACR Standards for Teleradiology, Section V).

A look at state legislation across the country, however, reveals several different approaches to the licensure issue. Some states have adopted legislation similar to the ACR's standards, requiring licensure in both the receiving and transmitting jurisdictions. Others, perhaps recognizing the logistical impediments to practitioners maintaining full licensure in multiple jurisdictions, with the attendant costs and overlapping CME requirements, allow for out-of-state physicians to practice teleradiology under the more limited restrictions of a specialized or telemedicine license. Still other states, while specifically recognizing telemedicine or teleradiology as being subject to state licensure requirements, have adopted broad exceptions to those requirements that may alleviate the need for licensure by out-of-state practitioners of teleradiology.

New Mexico is an example of a state that provides for its Board of Medicine to issue a special telemedicine license to allow the practice of medicine across state lines for a practitioner who holds a full and unrestricted license to practice medicine in another state (N.M. Stat. Ann. ¤61-6-11.1[A]). To facilitate the practice of telemedicine by out-of-state practitioners, the New Mexico Board of Medicine has by rule exempted out-of-state physicians holding a telemedicine license from the continuing medical education requirements otherwise applicable to New Mexico physicians (N.M. Code R. ¤16.10.4.8[C]). Neither a telemedicine license nor a general medical license is required for an out-of-state physician who acts as a consultant to a New Mexico licensed physician on an irregular or infrequent basis not to exceed 10 patients per year (N.M. Code R. ¤16.10.4.8[E]).

Montana similarly allows the practice of telemedicine by physicians duly licensed in another state, upon securing a telemedicine certificate from the Montana Board of Medical Examiners. Pursuant to the telemedicine certificate, the practitioner must agree to abide by Montana statutes and administrative rules governing the practice of medicine in Montana (Mont. Code Ann. 37-3-345[10]).

In contrast to states that provide for the practice of telemedicine or teleradiology by special certificate, many still consider telemedicine practiced by out-of-state physicians to be the practice of medicine in the transmitting state and thus subject to the full licensure and regulatory requirements of that venue.

With respect to teleradiology in particular, New Hampshire law provides that out-of-state radiologists engaged in teleradiology are deemed to be practicing medicine in, and subject to the licensure requirements of, New Hampshire (N.H. Rev. Stat. Ann. ¤329:1-b[II]). While exceptions are provided for emergency cases or physicians "residing on the border of a neighboring state . . . ," any "regular or frequent" teleradiology consult that crosses state lines requires the out-of-state radiologist at the receiving site to hold a New Hampshire medical license (N.H. Rev. Stat. Ann. ¤329:21[II]).

Connecticut requires out-of-state radiologists providing written diagnostic evaluations of electronically transmitted images on an ongoing regular or contractual basis to maintain a license to practice medicine in Connecticut (Conn. Gen. Stat. ¤20-9[d]). There are no broad exemptions from this statutory requirement that would exempt any regular practice of teleradiology across state lines.

West Virginia has adopted a similarly broad model requiring full licensure to practice telemedicine with limited exceptions for emergency cases or infrequent consultations-less than one patient per month or 12 times per year (W.Va. Code ¤30-3-13).

Rounding out our examination of some of the state licensure schemes that affect the practice of teleradiology are several states that mandate full in-state licensure for the practice of telemedicine, while at the same time recognizing exceptions that may well swallow the rule and allow for out-of-state teleradiologists to provide diagnostic evaluations to the transmitting state without being subject to those states' licensure requirements.

Mississippi, for example, provides that no person shall engage in telemedicine unless he or she has first obtained a license from the Mississippi State Board of Medicine Licensure but goes on to except from this requirement situations in which the evaluation or opinion of the out-of-state physician has been requested by a Mississippi physician who has already established a doctor/patient relationship with the patient to be treated or evaluated (Miss. Code. Ann. ¤73-25-34[3]). As many, if not most, teleradiology consults are pursuant to the request of a physician who has established a doctor/patient relationship, an exception like this appears broad enough to encompass most teleradiology practices.

Minnesota similarly provides for the practice of telemedicine upon registration with the state medical board by a physician from outside the state, so long as a current license to practice medicine is held in the state from which the physician provides telemedicine services. At the same time, exemptions from registration are provided for responses to emergency medical conditions or the provision of telemedicine services on an infrequent or irregular basis, defined as less than once a month or fewer than 10 patients annually.

Similar to Mississippi, Minnesota also provides a broad exemption from registration for any out-of-state physician providing interstate telemedicine services in consultation with a Minnesota physician who retains ultimate authority over the diagnosis and care of the patient. This broad exemption would in many cases obviate the need for special licensure of out-of-state radiologists interpreting teleradiology images, as such interpretations are in most cases at the request of a physician who retains ultimate authority over the case of the patient (Minn. Stat. ¤147.032 Subd. 2[3]).

One of the more interesting approaches to state licensure regulation regarding teleradiology comes from Oklahoma. By statute, the Oklahoma Board of Health is directed to establish a separate office within the State Department of Health known as the Oklahoma Center for Telemedicine (Okla. Stat. tit. 63, ¤ 1-2702[A][2]). Simultaneously, with respect to teleradiology, the board is directed to promulgate rules for the implementation of teleradiology responsibilities that are to be based upon the ACR Standard for Teleradiology (Okla. Stat. tit. 63, ¤1-2702[D]).

The rules adopted by the board, however, specifically decline to adopt ACR Standard Section V (Licensing, Credentialing, and Liability), which provides that physicians providing an official interpretation of images transmitted by teleradiology should maintain licensure at both the transmitting and receiving sites (Okla. Admin. Code ¤310:281-17-1[b][3]). At the same time, the board has not adopted any specific regulations outlining the licensure requirements for out-of-state physicians practicing teleradiology across state lines. In the absence of such guidance, the wisest course for the out-of-state physician at the receiving site is to maintain an Oklahoma license, as required by the ACR Standards, which Oklahoma has declined to adopt!

LIABILITY AND JURISDICTION

Despite some state legislative progress in the licensing arena, there have been few developments in the case law dealing with some of the other legal issues raised by the use of teleradiology. No cases as yet, for example, specifically address the issue of whether a physician interpreting a teleradiology image transmitted from another state is subject to the jurisdiction of the transmitting state with respect to malpractice claims arising from the interpretation of the image.

The resolution of such issues for the time being requires reference to long-established case law from the non-telemedicine era. In that regard, several interstate medicine cases indicate that patients treated in their home states, regardless of the medium, can avail themselves of remedies in their home state, regardless of the physician's location.

In an Oklahoma case from 1990, Kennedy v Freeman, 919 F.2d 126 (10th Cir. 1990), for example, a doctor who examined a mole on an out-of-state patient was subject to a lawsuit in the other state because the court found that the doctor agreed to render a diagnosis via mail to that patient. Thus, while most courts have not directly confronted the issue of teleradiology or telemedicine, traditional legal theory holds that lawsuits against a radiologist may be based in states in which the radiologist never sets foot, if that state determines that the radiologist provides patient services within that state.

With regard to medical malpractice issues, a patient-physician relationship must be shown to exist before liability will attach. Without such a relationship, a physician generally has no duty to protect a patient. But if this relationship exists, the physician has a duty to exercise a reasonable degree of learning and skill during treatment.

Courts have generally held that the patient-physician relationship doesn't require the formalities of a contract and can be implied from the parties' actions and from circumstances showing a mutual intention. That a physician does not deal directly with or have physical contact with a patient does not obviate a patient-physician relationship. Thus, depending upon the specific circumstances, a physician providing teleradiology services might be considered to have formed a patient-physician relationship with an out-of-state patient and be subject to a claim in that patient's home state.

CONCLUSION

The practice of medicine continues to advance as technology allows physicians to provide higher quality of care to a growing group of patients. As scientists rapidly make medical advances and create new technologies, the state legislatures and courts have been more deliberate and cautious in implementing changes to the laws, regulations, and legal principles that govern the practice of medicine.

While these changes have not occurred as quickly as medical advances, as time progresses, more and more states and courts will continue to adapt to accommodate the new technology that medical advances provide. In the meantime, the prudent teleradiologist needs to tread carefully and consult with counsel to ensure compliance with the laws of both the transmitting and receiving jurisdictions.

Acknowledgment

The author thanks Richard D. Holzheimer Jr., Esq. of Reed Smith for his assistance with this article. This is a general article for informational purposes and is not intended to constitute legal advice.

Mr. Coffey is a partner in the firm of Reed Smith, LLP and practices in Falls Church, VA.