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The problem, electronic data transmission and the law
LITIGATION, LEGISLATION, AND ETHICS Information pertaining to litigation, legislation, and ethics will be reported under this section of the American Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, reader's comments, and reprint requests may be submitted to Laurance Jerrold, DDS, JD, 100 Clark Ave., Massapequa, NY 11758
The problem, electronic data transmission and the law "Larry, I need a few minutes to pick your brain." The phone call was from one of my former students, let's call him Jim, who was calling me about a case that be had just taken diagnostic records on. From the way he was describing it, it was a tough case and being new to practice, Jim just wanted to be sure of his diagnosis and treatment plan. We can all recall those times, fresh out of school and first beginning to realize not how much we had learned, but just how much orthodontics we didn't know. Had he been practicing locally, he could have gathered up the patient's models, x-rays, and photos, and either just stopped by the office, dropped in at the school, met me somewhere for lunch, etc. The problem was that Jim was practicing out of state, way out of state, like across the country. "No problem," I said, "Just scan everything into your computer, send it to me, and while its on the screen, we can talk" The question you should all be asking yourselves is not "How do yon do that scanning thing?" or "So what was so tough about the case?" What you should be saying is "If I do this, will I be guilty of having practiced orthodontics in a state in which I am not licensed to do so?" Enter the era of teledentistry. Years back, we consulted with one another through the mail, then by phone, and eventually via the fax. Technology today affords us the same luxury through a myriad of electronic gadgetry. We now use modern technology to effect medical/dental data transfers for administrative purposes; we can also provide specialty consultations without having to transport either the patient or the physician; and finally, we are able to actually diagnose a patient who is seated thousands of miles away via technologically advanced video imaging and fiberoptic communication systems. Medicine is ahead of dentistry in this area. Physicians today can provide high-quality medical expertise to remote sites that in turn may help to reduce the costs of health care. A patient's progress can be monitored remotely thus allowing for earlier hospital discharge, which again might help to reduce the costs of delivering affordable quality health care. It is a boon to authorized persons seeking medical records, laboratory results, pathologic information, radiographs, pharmaceutical information, etc., when one is off site and needing to access this data. It also enhances medical education so that state of the art medicine, because of telemedicine, is now immediately available to locales that previously may have been deprived of timely access to this information. As with most things there is also a potential downside to telemedicine. Practitioners involved with providing care, advice, etc., through this medium may be exposed to potential liability in the areas of malpractice; licensure and credentialing
478
issues; data security, privacy, and confidentiality matters; and issues relating to storage, retention, and maintenance of medical records. As you know from reading this section of AJO/DO, there is no duty owed any person, unless a doctor-patient relationship has been established. Although it is relatively easy to establish this relationship face-to-face, it is much harder to do so through a modem. Th e problem is that if it can be shown that a doctorpatient relationship was established with technology used as the medium; and that the information transfer resulted in diagnosis or treatment that fell below the established standard of care, then the potential for liability becomes a real threat. If it can be shown that the consulting practitioner rendered advice directly to the patient, reviewed the patient's records for a fee, or made a recommendation to the requesting doctor on which the consulting practitioner expected the former to rely, than it could be argued that a doctor-patient relationship existed that in turn would gives rise to the duty to conform to an established standard of care. It is highly conceivable that a plaintiff will claim that the teledental consultation was negligent in that it did not allow for an appropriate diagnosis to be made, which led to an inferior treatment plan that resulted in the claimed injury. Another potential basis for a malpractice suit would be one in which the claim of negligence stems from any actions taken as a result of technically induced flaws or inaccuracies in the data transmitted. Another scenario could involve the loss of stored or retained records that may compromise the orthodontist's ability to compare and evaluate a patient's dentofacial growth and development and ultimately result in the claimed injury. Teledentistry may very well complicate the issue of v e n u e - the state in which the malpractice suit will be brought. Suppose a patient who lives in Oregon, goes to an orthodontist in Washington and is treated, through teledentistry, by another orthodontist in Georgia. Further suppose that the diagnosis or the treatment recommended, results in an injury. Where will the lawsuit be filed, Washington, Oregon, or Georgia? Will this problem contribute to what is known as forum shopping, which is each side looking at the differences in the state laws governing malpractice in an effort to choose the most advantageous forum relative to such things as statutes of limitations, laws relating to the potential for recovery, laws concerning who can testify as an expert, etc.? Another area for potential litigation is the situation in which, as noted above, some of the patient's diagnostic data have been flawed either in storage or transmission. Not only may the doctor be found liable, but the manufacturer who made the equip-
American Journal of Orthodontics and Dentofacial Orthopedics/April 1998
American Journal of Orthodontics and Dentofacial Orthopedics Volume 113, No. 4
ment and/or the consultant who recommended the system may also be exposed to liability relative to the malfunction or the software problem encountered. Given that there exists all of these potentials for liability, are there steps that we can take to better posture ourselves before we enter this brave new world of teledentistry? Let's use the hypothetical situation I initially posed. The first thing I would do is to make sure that I kept my own chart on Jim's patient. Based on the data he sent me for review, I would first generate, as best I could, a hard copy of the data. Then I would develop a chart that documented my diagnosis, treatment plan, mechanotherapeutic recommendations, etc. I would also routinely correlate the quality of all data transmitted through periodic testing by comparison. In addition, I wouldn't do anything different. By this I mean that if the quality of an x-ray was poor in my office and I would have retaken it, then if a transmitted x-ray is not of sufficient diagnostic quality, don't use it, request that a new one be taken before rendering help. ! would strictly adhere to some back-up protocol. After this I would make sure that once I got involved in "treating" Jim's patient I would make it a point to familiarize myself with the laws in Jim's state that govern how long those records would have to be maintained both in his state and in my own. In this way I would be sure of maintaining them for the longer retention period of both state laws. Next I would make sure, regardless if I was in full-time academia or in private practice, that my liability insurance would cover me should an adverse event occur because of my teledental activities. Finally, I would have Jim ask his patient to sign a consent form acknowledging the limited services I was providing or have Jim add my name to his consent form regarding his treatment of this patient.
COMMENTARY Where does all of this leave us? As with any new environment we must learn to become comfortable within those new surroundings. Because of state's sights issues, we must
Litigation, legislation, and ethics 479
acknowledge that what is allowed in one jurisdiction may not be allowed in another. California, as an example, has a consultation exception to its licensing laws whereas other states require the consulting physician to have a license to practice in that state. Congress has a task force, The Joint Working Group on Telemedicine, working on issues relating to Telemedicine. The Federation of State Medical Boards has addressed this issue and has recommended issuing a limited national license, The American College of Radiology has already formulated guidelines dealing with issues in telemedicine. In addition, The Center for Telemedicine Law's Licensure Task Force is already influencing state laws regarding modifications concerning licensure requirements. Again, where does this leave us? The AAO should address this issue through a policy statement, possibly in the Guidelines for Clinical Practice that was recently completed. State components should address their medical counterparts and offer to assist them as they develop the laws that will eventually filter down and affect us. Clinically, we should not rush into using the available technology without having due respect for the potential consequences of our actions. How many times have you thought you had a treatment plan all set based on the diagnostic records only to discover that when you are face to face with the patient, there is something that is different and your treatment plan changes. Teledentistry won't allow for that. Twenty years from now this may not be an issue or cause for thought, but for right now...
References 1. American College of Radiology, Standard for Teleradiology; Res.26-1996. 2. Cepelewicz BB. Telemedicine liability: Strategies to minimize risk. Medical malpractice law and strategy, Vol. XV No. 2 December 1997 3. Sfikas PM. Teledentistry: Legal and regulatory issues explored. J Am Dent Assoc 1997;128:1716-8.
CORRECTION T h e Litigation, Legislation, and Ethics c o l u m n by L a u r e n c e Jerrold that appeared in the M a r c h 1998 issue should h a v e carried the title, " O r t h o d o n t i c s as a spectator sport: D o e s bystander liability attach?
The problem, electronic data transmission and the law "Larry, I need a few minutes to pick your brain." The phone call was from one of my former students, let's call him Jim, who was calling me about a case that be had just taken diagnostic records on. From the way he was describing it, it was a tough case and being new to practice, Jim just wanted to be sure of his diagnosis and treatment plan. We can all recall those times, fresh out of school and first beginning to realize not how much we had learned, but just how much orthodontics we didn't know. Had he been practicing locally, he could have gathered up the patient's models, x-rays, and photos, and either just stopped by the office, dropped in at the school, met me somewhere for lunch, etc. The problem was that Jim was practicing out of state, way out of state, like across the country. "No problem," I said, "Just scan everything into your computer, send it to me, and while its on the screen, we can talk" The question you should all be asking yourselves is not "How do yon do that scanning thing?" or "So what was so tough about the case?" What you should be saying is "If I do this, will I be guilty of having practiced orthodontics in a state in which I am not licensed to do so?" Enter the era of teledentistry. Years back, we consulted with one another through the mail, then by phone, and eventually via the fax. Technology today affords us the same luxury through a myriad of electronic gadgetry. We now use modern technology to effect medical/dental data transfers for administrative purposes; we can also provide specialty consultations without having to transport either the patient or the physician; and finally, we are able to actually diagnose a patient who is seated thousands of miles away via technologically advanced video imaging and fiberoptic communication systems. Medicine is ahead of dentistry in this area. Physicians today can provide high-quality medical expertise to remote sites that in turn may help to reduce the costs of health care. A patient's progress can be monitored remotely thus allowing for earlier hospital discharge, which again might help to reduce the costs of delivering affordable quality health care. It is a boon to authorized persons seeking medical records, laboratory results, pathologic information, radiographs, pharmaceutical information, etc., when one is off site and needing to access this data. It also enhances medical education so that state of the art medicine, because of telemedicine, is now immediately available to locales that previously may have been deprived of timely access to this information. As with most things there is also a potential downside to telemedicine. Practitioners involved with providing care, advice, etc., through this medium may be exposed to potential liability in the areas of malpractice; licensure and credentialing
478
issues; data security, privacy, and confidentiality matters; and issues relating to storage, retention, and maintenance of medical records. As you know from reading this section of AJO/DO, there is no duty owed any person, unless a doctor-patient relationship has been established. Although it is relatively easy to establish this relationship face-to-face, it is much harder to do so through a modem. Th e problem is that if it can be shown that a doctorpatient relationship was established with technology used as the medium; and that the information transfer resulted in diagnosis or treatment that fell below the established standard of care, then the potential for liability becomes a real threat. If it can be shown that the consulting practitioner rendered advice directly to the patient, reviewed the patient's records for a fee, or made a recommendation to the requesting doctor on which the consulting practitioner expected the former to rely, than it could be argued that a doctor-patient relationship existed that in turn would gives rise to the duty to conform to an established standard of care. It is highly conceivable that a plaintiff will claim that the teledental consultation was negligent in that it did not allow for an appropriate diagnosis to be made, which led to an inferior treatment plan that resulted in the claimed injury. Another potential basis for a malpractice suit would be one in which the claim of negligence stems from any actions taken as a result of technically induced flaws or inaccuracies in the data transmitted. Another scenario could involve the loss of stored or retained records that may compromise the orthodontist's ability to compare and evaluate a patient's dentofacial growth and development and ultimately result in the claimed injury. Teledentistry may very well complicate the issue of v e n u e - the state in which the malpractice suit will be brought. Suppose a patient who lives in Oregon, goes to an orthodontist in Washington and is treated, through teledentistry, by another orthodontist in Georgia. Further suppose that the diagnosis or the treatment recommended, results in an injury. Where will the lawsuit be filed, Washington, Oregon, or Georgia? Will this problem contribute to what is known as forum shopping, which is each side looking at the differences in the state laws governing malpractice in an effort to choose the most advantageous forum relative to such things as statutes of limitations, laws relating to the potential for recovery, laws concerning who can testify as an expert, etc.? Another area for potential litigation is the situation in which, as noted above, some of the patient's diagnostic data have been flawed either in storage or transmission. Not only may the doctor be found liable, but the manufacturer who made the equip-
American Journal of Orthodontics and Dentofacial Orthopedics/April 1998
American Journal of Orthodontics and Dentofacial Orthopedics Volume 113, No. 4
ment and/or the consultant who recommended the system may also be exposed to liability relative to the malfunction or the software problem encountered. Given that there exists all of these potentials for liability, are there steps that we can take to better posture ourselves before we enter this brave new world of teledentistry? Let's use the hypothetical situation I initially posed. The first thing I would do is to make sure that I kept my own chart on Jim's patient. Based on the data he sent me for review, I would first generate, as best I could, a hard copy of the data. Then I would develop a chart that documented my diagnosis, treatment plan, mechanotherapeutic recommendations, etc. I would also routinely correlate the quality of all data transmitted through periodic testing by comparison. In addition, I wouldn't do anything different. By this I mean that if the quality of an x-ray was poor in my office and I would have retaken it, then if a transmitted x-ray is not of sufficient diagnostic quality, don't use it, request that a new one be taken before rendering help. ! would strictly adhere to some back-up protocol. After this I would make sure that once I got involved in "treating" Jim's patient I would make it a point to familiarize myself with the laws in Jim's state that govern how long those records would have to be maintained both in his state and in my own. In this way I would be sure of maintaining them for the longer retention period of both state laws. Next I would make sure, regardless if I was in full-time academia or in private practice, that my liability insurance would cover me should an adverse event occur because of my teledental activities. Finally, I would have Jim ask his patient to sign a consent form acknowledging the limited services I was providing or have Jim add my name to his consent form regarding his treatment of this patient.
COMMENTARY Where does all of this leave us? As with any new environment we must learn to become comfortable within those new surroundings. Because of state's sights issues, we must
Litigation, legislation, and ethics 479
acknowledge that what is allowed in one jurisdiction may not be allowed in another. California, as an example, has a consultation exception to its licensing laws whereas other states require the consulting physician to have a license to practice in that state. Congress has a task force, The Joint Working Group on Telemedicine, working on issues relating to Telemedicine. The Federation of State Medical Boards has addressed this issue and has recommended issuing a limited national license, The American College of Radiology has already formulated guidelines dealing with issues in telemedicine. In addition, The Center for Telemedicine Law's Licensure Task Force is already influencing state laws regarding modifications concerning licensure requirements. Again, where does this leave us? The AAO should address this issue through a policy statement, possibly in the Guidelines for Clinical Practice that was recently completed. State components should address their medical counterparts and offer to assist them as they develop the laws that will eventually filter down and affect us. Clinically, we should not rush into using the available technology without having due respect for the potential consequences of our actions. How many times have you thought you had a treatment plan all set based on the diagnostic records only to discover that when you are face to face with the patient, there is something that is different and your treatment plan changes. Teledentistry won't allow for that. Twenty years from now this may not be an issue or cause for thought, but for right now...
References 1. American College of Radiology, Standard for Teleradiology; Res.26-1996. 2. Cepelewicz BB. Telemedicine liability: Strategies to minimize risk. Medical malpractice law and strategy, Vol. XV No. 2 December 1997 3. Sfikas PM. Teledentistry: Legal and regulatory issues explored. J Am Dent Assoc 1997;128:1716-8.
CORRECTION T h e Litigation, Legislation, and Ethics c o l u m n by L a u r e n c e Jerrold that appeared in the M a r c h 1998 issue should h a v e carried the title, " O r t h o d o n t i c s as a spectator sport: D o e s bystander liability attach?