A couple of years ago one of our eager beaver young hospital attorneys representing our self-insured malpractice plan contacted our pathology department business manager to see if any pathologists were, "practicing pathology outside of the state." Since, as in many academic institutions, we get thousands of consults a year from across the country as well as internationally, the immediate (and perhaps naive) answer was "yes." ...and the immediate response from the eager beaver attorney was, "That's illegal and has to cease, until licenses are obtained in all states from which consults are submitted." Needless to say, the prospect of obtaining and maintaining licensure in 50 states was cost and time prohibitive. But our consults are the backbone of our fellowship training and form the basis for many clinicopathologic studies derived from this material. This untenable situation led several of us on a nearly 2-year trip down the telemedicine "rabbit-hole" from which we have finally emerged with a lawyer-acceptable compromise at our institution to a truly baffling patchwork set of
state statutes.
I'd like to share some of our findings regarding this potentially problematic issue which many (most?) academic departments seem to have chosen (perhaps correctly!) to ignore. Although their verbiage often speaks of protecting the patient, telemedicine laws were devised PRIMARILY to protect physicians, mainly pathologists and radiologists, from loss of business and revenue due to the shipping or electronic transfer of specimens or radiographic images across state (or national) borders for PRIMARY DIAGNOSIS. In support of that fact, as a general rule, smaller more rural states typically have stronger telemedicine laws as their smaller medical practices were perceived by their physicians to be more vulnerable to out of state diagnosis, leading to pressure on legislators to write tougher laws. Larger states such as New York and California, in contrast, tend to have more limited laws in this regard. Two facts, and perhaps only two, become clear in reviewing the patchwork of 50 state telemedicine laws. 1. When it comes to pathology specimens and radiographs, the practice of medicine is said to take place at the point where the patient is located, NOT at the point where the primary diagnosis was rendered. 2. If you are obtaining specimens from another state for primary diagnosis, you NEED to be licensed in that state.
With regard to interstate physician-directed pathology consultations, our main area of concern, things are MUCH, MUCH more cloudy. Speaking with representatives of state medical boards (usually lawyers) does VERY LITTLE to enlighten things. In short, they don't know or are afraid to offer an opinion. One fundamental issue, getting back to our business manager's comment, is whether a physician-directed consult constitutes the practice of medicine. The main argument in favor of this is that the consultant bills (usually the patient) for this service, constituting a contractual arrangement. Yet, others argue that this does not equate with the practice of medicine because, 1. The consultant has no direct contact with the patient, 2. The consultant provides an opinion based on limited information, 3. Most importantly, the consultant's opinion does not constitute the final diagnosis of the case. The primary pathologist has the responsibility to synthesize one or more consultants' opinions and provide the final diagnosis. Discussions with state board representatives on this point yield opinions that consultations ARE the practice of medicine, they ARE NOT the practice of medicine, or "it's unclear." I would point out that virtually all lawyers would agree that a pathology consultation request from a lawyer regarding the diagnosis in a potential medicolegal case does NOT constitute the practice of medicine.
Discussions of this topic with state medical societies, particularly officers in state pathology societies, many of whom were consulted regarding their state's telemedicine laws, yields a firm consensus that these laws were NEVER meant to limit a physician's ability to seek expert consultation across state lines, when needed. Indeed, to do so would adversely affect patient care, and patient care is the issue which virtually all telemedicine laws state that they seek to optimize. Most (but not all) states provide at least a vague exemption for physician-directed consultations provided that they are "infrequent" and on a "case by case basis." Some, such as West Virginia set a specific limit for consultations (12 per year), after which the consultant must be licensed in the state. It seems clear that the purpose of this verbiage is to prevent "back door" primary diagnosis. In other words, to prevent a pathologist or radiologist from sending virtually all of their cases out for primary diagnosis under the guise of obtaining a "consultation." Along these lines, some states make it clear that no contractual arrangement should exist between the consultant and the primary physician.
What do our national pathology societies say about this issue? Unfortunately, not very much. To my knowledge, only the
College of American Pathologists has specific guidelines with regard to
interstate consultations, and these guidelines indicate that medical licensure in the referring state is not required. Of course, as any lawyer will tell you, guidelines don't mean much when they conflict with state statutes.
Where does this leave the consultant? It seems clear that examining consultations from out of state, without a license in the referring state, does NOT violate the spirit of any telemedicine law, provided that the consultations are "infrequent" and on a case by case basis, without a contractual arrangement with the contributing pathologist, ie. all of their consults go directly to you or your institution. Nonetheless, some states do not provide for this specific exemption and examining consults from these states could leave the consultant open for legal action, though the chances of someone bringing such action when only optimal patient care was being sought, seem to be virtually zero. Nonetheless, you may want to take a look at some of these
laws. The issue of medicolegal liability for rendering a consultation is a separate and only partially related issue that I will not address here, except to say that I am unaware of a successful lawsuit against a pathology consultant, though certainly anyone can be sued at anytime for any thing, and there may be a few such cases out there. The difficulties in successfully suing a consultant are many, but perhaps not insurmountable.
It is clear that the use of telemedicine is only going to increase with time and there is a growing need for a uniform national code with regard to its practice. This issue also brings into focus the arguments in favor of a national medical license. A movement in this regard has already begun and is likely to gain momentum with time.