Telemedicine and integrated health care delivery: compounding malpractice liability.

INTRODUCTION Telemedicine became a significant part of the health care equation long before we realized what it was or how important it will be in the future. Telephone discussions and consultations between health care providers have been a part of medical practice since Alexander Graham Bell gifted society with telephones.1 Furthermore, who among us has not been transfixed watching and learning about open heart surgery on cable television?2 Propelled by the information superhighway and the breadth of emerging computer and communication technologies, telemedicine will change the face of medicine and methods of interaction between providers and patients.3 Access, quality and cost of health care may all improve, but not without the sacrifice of some time-honored norms in medical practice.4 The changes telemedicine will bring to medical practice exacerbate the changes deriving from the proliferation of managed care integrated delivery systems (IDSs) and the contraction of the health care industry.5 The solo practitioner revered by Norman Rockwell is rapidly becoming extinct, superseded by groups of providers employed by or engaged in contractual partnerships with one or more integrated managed care plans.6 The community hospital of the mid-twentieth century has merged, remerged and now emerged as part of an organized network of hospital services, often affiliated with one or more health plans.7 The traditional Blue Cross and Blue Shield plans spun off for-profit managed care plans that, along with provider partners, are vibrant and successful, while the gutted parent companies languish, relics of the past.8 This Article considers how theories of medical negligence might be applied in the context of telemedicine and integrated delivery health plans. Part Two summarizes the history of telemedicine, its increasing breadth of application and opportunity and promise for the future. Part Three reviews traditional negligence principles and precedents and demonstrates how they might be applied when a telemedicine interaction results in negligence and harm to the patient. Part Four discusses evolving theories of shared liability applicable to health plans and managed care entities. Finally, Part Five demonstrates how shared liability theories will be applied to situations involving telemedicine technologies. II. TELEMEDICINE: HISTORY, PRESENT APPLICATIONS AND FUTURE PROMISE Telemedicine's "simple, but serviceable" definition is the use of telecommunication to diagnose and treat a patient.9 Telemedicine encompasses a panoply of technologies and communication modalities that allow health care providers to connect with, examine, counsel and advise patients about treatment options.10 These include teleradiology and other teleimaging diagnostics,11 telesurgery and robotics,12 video and Internet/e-mail conferencing,l3 transmission of electrocardiographic and other physiological data by telephone, telecommunications, or Internet lines14 and "telehealth" education via the Internet and cable television.15 Although many of these examples rely on relatively recent communications technologies, telemedicine escaped the bounds of the simple telephone call at least thirty years ago and has already acquired an impressive history. A. FOUND IN SPACE: THE HISTORY OF MODERN TELEMEDICINE Although isolated telemedicine experiments date back to the early 1960s,16 telemedicine began with the space program. One of the National Aeronautics and Space Administration's (NASA) pivotal concerns was the medical monitoring of astronauts.17 This concern began with the earliest Mercury and Gemini flights, developed through the Apollo Moon Program and continues today with space shuttle and MIR missions.18 NASA's scientists created telemetric technologies that allowed the long-distance measurement and transmission of physiological data through space. 19 While refining the use of telemetry in space, NASA facilitated the terrestrial use of this and other telemedicine technologies domestically and internationally. …