CHAPTER 4: MEDICAL LIABILITY

UNIQUE ANALYTICAL CHALLENGES

It is tempting to assume that telemedicine legal and quality issues are no different to those which have for many years been encountered with "analogous" tools such as the telephone or the stethoscope, both of which are examples of technologically-mediated care where there is a "distance" between practitioner and patient. It is, however, submitted that this would constitute a false and inadequate analogy. While the telephone might well constitute a form of telemedicine, it is critical to recognize the complexities generated by the broad and systematic qualities of telemedicine. As the IOM stressed, telemedicine is not:

"A single technology or a discrete set of related technologies; it is, rather, a large and very heterogeneous collection of clinical practices, technologies, and organizational arrangements" (1)

The complexity, variety and breadth of telemedical interactions was, similarly, emphasised by Bashshur et al in their text Telemedicine Theory and Practice:

"Only when viewed as a complete and integrated network will telemedicine’s unique distributive capabilities and integrative functions be maximized… Telemedicine may be viewed as an innovative system of care that can provide a variety of health and educational services to its clients unhindered by space and time. As a system of care, it entails a new organizational form, enhancing our rationality in triaging patients to appropriate sources of care and in efficient clinical decision making. Indeed, in view of its complexity, telemedicine should be viewed as an "innovation bundle"… when fully implemented as a complete system of care, telemedicine entails a restructuring of health care. As with all structural changes, this may bring about both intended and unintended, as well as desirable and undesirable, consequences that call for new adjustment… (Telemedicine should be seen as) an innovation bundle, involving various mixes of technology, organization, manpower and clinical services. This bundle, which is not uniform in structure or form is being introduced into, and is expected to bring change to a complex clinical, physical, cultural, social, and psychological landscape of medical care" (2)

LIABILITY ISSUES POSED BY TELEMEDICINE: "EVOLUTIONARY" OR "REVOLUTIONARY"?

As the Council on Competitiveness observed:

"The issue of malpractice is perhaps the greatest unknown legal barrier for some telemedicine market segments". (3)

SCOPE OF THIS REPORT

This Report proposes to consider the following question: given telemedicine’s potential to generate major and sometimes revolutionary change in the way healthcare is delivered, is change of a similar magnitude required to the legal system?

This Report will focus on telemedicine and medical liability, also known as "medical malpractice" or "medical negligence", litigation, specifically on how courts may deal with those issues that are unique to telemedicine and with familiar or established areas which might be altered or rendered more complex by the new telemedical context. Particular attention will be paid to the following areas:

• Identification of the legal duties that telepractitioners owe to their patients and to each other.

• How telemedicine may reduce litigation by contributing to an improved standard of care or by creating new forms of evidence which could be admitted at trial to prove or to limit the scope of the matters in issue.

• How telemedicine may create new legal problems or render more complex the factual and legal environment in which courts are called upon to determine responsibility.

• The legal ramifications of the communication tools that are "part and parcel" of telemedicine — problems arising from the creation, storage and transportation of records, evidentiary and risk management repercussions of communicating via the "information highway". (4)

• The legal repercussions of "cross-border" telemedicine and its effects on jurisdictional, "choice of law" and "choice of forum" issues. The related issues of licensure/registration will be dealt with separately save where they raise issues of relevance to the analysis of medical liability.

It is not possible to definitively predict how the common law will deal with liability issues arising out of the practice of telemedicine. However, this Report proposes to conduct a careful analysis of existing principles which will assist to identify the nature and magnitude of the legal problems raised by telemedicine and those areas and issues in respect of which telepractitioners may now face greater exposure or potential legal vulnerability. This will in turn facilitate a discussion concerning how these uncertainties might be addressed by the courts in the future; whether legislative intervention is appropriate or desirable, and what risk management and risk minimization strategies ought to be utilized to promote the use of telemedicine while at the same time avoiding the spectre of litigation.

It is important not to overstate the legal and litigation repercussions of telemedicine. It would be unduly alarmist and without foundation to conclude that the law is not equipped to address the problems and challenges of telemedicine or of the "health care infostructure".

Instead, what is needed is an examination of existing legal principles. Courts will, as they have throughout the history of medical litigation, apply and where appropriate modify and expand existing standards of liability while recognizing and adapting to the changing social, ethical and medical environment.

While this Report will seek to allay some concerns about legal exposure in the "brave new world" of telemedicine, it might create others. To the extent that this Report identifies outstanding "gray areas", it is hoped that rather than looking upon this a further impediment to telemedicine, it is regarded as an opportunity to generate discussion and analysis, to implement practical risk management strategies and to ventilate options for reform.

THE UNIQUE CHALLENGES OF TELEMEDICINE

Clearly, some applications of telemedicine/telehealth will be largely uncontroversial from a legal perspective. Equally, others will not.

It is submitted that the novelty and complexity of liability issues raised by telemedicine will be directly proportionate to the novelty of the telemedical interaction or application and, specifically, the extent to which such interaction or application deviates from "traditional" norms of service delivery.

Several features of telemedicine are capable of generating novel or complex liability questions:

• Simultaneously acting as both enabler and destabiliser. Because it enables care delivery in a manner that transcends the long-established limits of time, distance and institutional barriers, telemedicine challenges and undermines traditional norms and thereby changes:

"the way that healthcare professionals think of themselves and their work …" where information was previously departmentalised or compartmentalised in the future it will be available both inside organisations and across them" (5)

• Creates new ways of interacting with a patient. Reliance upon technological mediators to establish virtual "contact" raises questions about the steps required to identify and overcome the qualitative deficiencies generated by the absence of "hands on" contact.

• Redefine existing roles and relationships between professionals. New models of therapeutic, diagnostic and consultative interaction made possible by the technology potentially generates legal issues regarding the identification of roles and allocation of responsibilities between parties and the steps required to accommodate the new communications settings.

• Ignores/transcends borders. The technology permits interactions, in real time or through "store and forward" technologies, between a wide range of caregivers in different places at different times and from unrelated organizations.

• Involves more "players". Not only does telemedicine potentially entail the simultaneous involvement of two or more practitioners, but it is increasingly likely to involve allied health and "in-house" technical support personnel. In addition, there will be reliance upon the external entities responsible for manufacturing, supplying and maintaining the necessary ICT. The increased number of "protagonists" is likely to generate more complex and protracted litigation, not only because of the increased number of potential defendants, but also because of the prospects for generating "product liability" claims as well as or instead of "medical negligence" claims.

This Report will examine telemedicine liability issues relevant to duty of care; standard of care and standards-setting issues; evidentiary ramifications, and jurisdictional and related issues

In each instance, the analysis will seek to reflect not only the relevant legal principles governing liability but, equally importantly, an appreciation of the practical realities of litigation.

THE LAW OF NEGLIGENCE

Where compensation is sought as a result of an actual or alleged medical mishap, a claim in negligence is made against the alleged wrongdoer. Such claims are variously described as medical malpractice, medical negligence or medical liability claims. Regardless of nomenclature, all claims involve allegations of negligence and therefore require the claimant to establish each and every component of the cause of action of negligence, namely, that the defendant owed the claimant a duty of care; that the defendant failed to adequately discharge that duty i.e. that there was a breach of the duty of care; that the claimant had suffered injury, loss and damage and that such injury, loss and damage was caused by the breach of duty which the defendant owed to the claimant.

Less often, medical liability claims are also pursued alleging breach of contract. While this Report will focus on the law of negligence, it acknowledges that contracts will be increasingly used and scrutinized in the course of liability claims involving telemedicine.

THE PRACTICAL REALITIES OF LITIGATION

In addition to an appreciation of the "black letter" legal principles, an analysis of telemedicine liability issues requires an understanding of several practical factors that often critically influence litigation strategies and ultimate findings made at trial:

• Liability often turns on the facts. The capacity to ascertain "who said what to whom and when" is often the critical issue.
• Communication - or its absence - is often at the heart of medical liability claims.
• The availability of contemporaneous documentation of a relevant encounter - or its absence - is often critical to the determination of liability and the resolution of factual disputes.
• Many claims reflect a "machine gun" approach to the identification of relevant parties aimed at ensuring that all potentially relevant persons are brought into the proceeding.
• Medical negligence law is an expanding area, in respect of which courts are displaying an increasing willingness to expand the circumstances where a duty is owed, the steps required to discharge that duty, and the level of compensation payable once breach of duty has been established.

Telemedicine has the capacity to influence, both positively and negatively, each and every one of these "practical factors" identified above. This Report’s analysis of how the law may treat telemedicine will, and must, take into account both the theoretical and practical principles governing the conduct of medical liability litigation.

Endnotes to Chapter 4

(1) "Telemedicine" p. 207

(2) Bashshur et al Telemedicine Theory and Practice, pages 7, 18 and 20

(3) Highway to Health p. 22

(4) For example, through e-mail, recorded interactive video, the World Wide Web/Internet etc.

(5) G.B. Moore, D.A. Ray and J. D. Rollins, Prescription for the Future: How the Technology Revolution is Changing the Pulse of Global Health Care, 1996, p. 27 and p.l0. Similar forces were recognized and embraced by the Victorian Government in its report, Information, Information Technology and Telecommunication Strategy for Victorian Public Hospitals. Final Report. December 1996, which was prefaced with a quotation from an Australian article which reflected upon: "the transition from a self-contained and well-defined hospital to an elastic, boundaryless, loosely networked, diffuse health care arrangement … ", quoting Braithwaite, Vining and Lazarus "The boundaryless hospital", Australian and New Zealand Journal of Medicine, 1996, 24, pages 565-571.

Index