Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-25T06:37:28.623Z Has data issue: false hasContentIssue false
  • English
  • Français

Regulating Medical Practice in the Cyber Age: Issues and Challenges for State Medical Boards

Published online by Cambridge University Press:  24 February 2021

Ross D. Silverman
Ross D. Silverman*
Affiliation:
Southern Illinois University School of Medicine, Southern Illinois University School of Law. Indiana University, Boston University School of Law, Boston University School of Public Health
Get access Rights & Permissions [Opens in a new window]

Extract

“On the Internet, nobody knows you're a dog,” says one canine to another as they sit in front of a computer in the classic New Yorker cartoon. This can also apply to those who seek or provide medical care online. On the Internet, nobody knows if you're male or female, elderly or adolescent, fit or obese, hirsute or bald, virile or impotent. In addition, in many cases, nobody knows if the “physician” or “pharmacist” on the other end of the line is a properly licensed physician or pharmacist, where they are located, what the knowledge level or training of the consulting practitioner is, or whether the medications being shipped are of the appropriate level of quality, potency or dosage. And, if the ease with which one is able to procure pharmaceuticals online is any indication, there are plenty of unscrupulous entrepreneurs selling drugs on the Internet who do not appear to care.

Type
Articles
Information
American Journal of Law & Medicine , Volume 26 , Issue 2-3: The Changing Face of Law and Medicine in the New Millennium , 2000 , pp. 255 - 276
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Networking, quoted in Rob Gebeloff, Gender Juggling: Be Whoever You Want to Be Online, Bergen Record, Sept. 20,1999, at H7.

2 See Bloom, Bernard S. & Iannacone, Ronald C., Internet Availability of Prescription Pharmaceuticals to the Public. 131 Annals Internal Med. 830, 832 (1999)Google Scholar (discussing the ease with which people can obtain medications by giving false and unverifiable information).

3 See id. at 832.

4 For additional discussion of the early history of medical regulation, see Carl F. Ameringer, State Medical Boards And The Politics of Public Protection 14-79 (1999); Robert C. Derbyshire, M.D., Medical Licensure and Discipline in the United States 1-13 (1969) [hereinafter Medical Licensure and Discipline]; Richard Harrison Shryock, Medical Licensing in America 1650-1965, 3-42 (1967); Paul Starr, the Social Transformation of American Medicine 102-12 (1982); Timothy Stolzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 Ariz. L. Rev. 825, 827-41 (1995) [hereinafter Oversight]; Edward P. Richards, The Police Power and the Regulation of Medical Practice: A Historical Review and Guide for Medical Licensing Board Regulation of Physicians in Erisa-Qualified Managed Care Organizations, 8 Annals Health L. 201, 203-10 (1999) (discussing, inter alia, the public health foundations of medical licensure).

5 U.S. Const, amend. X.

6 Dent v. West Virginia, 129 U.S. 114 (1889); Collins v. Texas, 223 U.S. 288 (1912); Crane v. Johnson, 242 U.S. 339 (1917); Lambert v. Yellowley, 272 U.S. 581, 596 (1926) (“[T]here is no right to practice medicine which is not subordinate to the police power of the States.”); Louisiana State Board of Medical Examiners v. Fife, 162 La. 681 (1926), off d 274 U.S. 720 (1927).

[N]o person has a natural or absolute right to practice medicine or surgery. It is a right granted upon condition. And, although a state cannot prohibit the practice of medicine and surgery, and would hardly undertake to do such a thing, still it is well established that, under its police power, it may regulate, within reasonable bounds, for the protection of the public health, the practice of either, by defining the qualifications which one must possess before being admitted to practice the same, and, to make these regulations effective, to require the one intending to engage in the practice, to possess, before engaging therein, a certificate from the proper authority showing that he possesses the required qualifications.

Fife, 162 La. at 685-86 (citations omitted).

7 Because medicine is a profession, because practicing medicine poses risks to the public, and because of physicians' specific connection to the historical public health issues of epidemic disease control and sanitation issues, the regulation of medical practice falls squarely within the traditional boundaries of the state police power. See Richards, supra note 4, at 202-03.

By the beginning of the 20th Century, the state's authority to pass legislation in this area was already firmly established. In 1910, Justice Day, speaking for the Supreme Court in Watson v. Maryland, 218 U.S. 173 (1910), described the foundation and rationale behind the states' regulatory authority as follows:

It is too well settled to require discussion at this day that the police power of the States extends to the regulation of certain trades and callings, particularly those which closely concern the public health. There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine. Dealing, as its followers do, with the lives and health of the people, and requiring for its successful practice general education and technical skill, as well as good character, it is obviously one of those vocations where the power of the State may be exerted to see that only properly qualified persons shall undertake its responsible and difficult duties.

Id., 218 U.S. at 176. See also Hawker v. New York, 170 U.S. 189, 192-94 (1898) (“No precise limits have been placed upon the police power of a State, and yet it is clear that legislation which simply defines the qualifications of one who attempts to practise medicine is a proper exercise of that power. Care for the public health is something confessedly belonging to the domain of that power.”).

8 129 U.S. at 114(1889).

9 See id. at 121-25.

10 Id. at 121.

11 Id. at 122.

12 See Oversight, supra note 4, at 827. For a discussion of ways in which modern technology has enhanced patient knowledge about both the qualifications of physicians and the practice of medicine, see infra notes 32-40 and accompanying text.

13 See Oversight, supra note 4, at 827. This gap in knowledge and understanding can also be seen as a form of market failure. See id. Professor Timothy Jost also feels that while states have expanded their oversight responsibilities beyond the initial evaluation of competence, the “market failure” rationale continues to drive professional regulatory policy. See id. at 833-35; see also Elizabeth Graddy, Interest Groups or the Public Interest - Why Do We Regulate Health Occupations?, 16 J. Health Pol., Pol'Y & L. 25, 28 (1991) (discussing how greater asymmetry in the distribution of information to health care consumers coupled with an inability of consumers to evaluate a service using certification information increases the value of more restrictive regulation of health professionals).

14 See Dent, 129 U.S. at 122-23.

15 See Ameringer, supra note 4, at 18.

16 See, e.g., Milton Friedman, Capitalism and Freedom 154 (2d ed. 1982); Stanley J. Gross, of Foxes and Hen Houses 21-28 (1984); American Health law 668-74 (George J. Annas etal. eds. 1990).

17 See Pew Health Professions Commission, Taskforce on Health Care Workforce Regulation, Reforming Health Care Workforce Regulation: Policy Considerations for the 21st Century 2, 5-8(1995).

18 Jim Frederick, $6 Billion in Online Holiday Sales by the End of This Month! $24 Billion in Internet Ads by 2003! 2.3 Trillion E-Biz Predictions by 2010!, Sunday N.Y. Times Mag., Dec. 19, 1999, at 70.

19 See U.S. Census Bureau, Computer Use in the United States: Oct. 1997, Table C (last modified Oct. 14, 1999) <http://www.census.gov/prod/99pubs/p20-522.pdf>.

20 See U.S. Census Bureau, Computer Use and Ownership Data: Oct. 1993, Table 1 (visited May 16, 2000) <http://www.census.gov/population/www/socdemo/computer/computer93.html>.

21 See Frederick, supra note 18, at 70. The hundreds of billions of dollars spent in 1999 to address the “Y2K Bug,” coupled with the endless stream of news articles, television and radio broadcasts, and reassurances from representatives of government and industry stemming from this computer programming glitch all attest to the computer's omnipresence in American society and consciousness.

22 See Matt Richtel, Computer Buyers' Ranks Keep Getting Broader, N.Y. Times, Sept. 17,1998, atG3.

23 While it was 38 years before radio had 50 million users and 13 years before television reached that many people, it only took the Internet 5 years to reach that large a population. See Jeff Goldsmith, How Will the Internet Change Our Health System?, Health Aff., Jan.-Feb. 2000, at 148.

24 See Internet Users Now Exceed 100 Million, N.Y. Times, Nov. 12, 1999, at C8 (noting that half of all adults in the U.S. currently use the Internet).

25 See U.S. Census Bureau, Computer Use in the United States, supra note 19.

26 See id. Furthermore, one out of every ten children is estimated to use the Internet, a number that has grown 400% since 1995, promising a future even more “connected” than the present. See Susan Pierce, Teen Tech: Teens incorporate the Internet into daily lives, Chattanooga Times, Jan. 25, 2000, at El.

27 Consumer spending on the Internet comprises only a small slice of the e-commerce pie: while consumers spent an estimated $8 billion on the Internet in 1998, business-to-business spending on the Internet amounted to more than $40 billion that year. See Goldsmith, supra note 23, at 148. However, as consumer use of the Internet most closely relates to the regulation of the healthcare professions, discussion in this Article will be limited to physician-patient interactions via the Internet and the responses by state and federal legislators and regulators thereto.

28 See, e.g., <http://www.bluemountain.com/>.

29 See, e.g., <http://www.louvre.fr/>.

30 See, e.g., <http://www.broadcast.com/sports/>.

31 See, e.g., <http://www.ebay.com>; see also Lisa Guernsey, Night of the Living Bid: Four Tales From an Hour of eBay, N.Y. Times, Sept. 22, 1999, at G7.

32 See Goldsmith, supra note 23, at 151 (citing a Louis Harris poll “Americans Seek Health Information Online” which found that 70 million Americans used the Internet to search for health information in 1999). The Internet can be used in the health care milieu for any number of different functions, such as biomedical research, public health, the payment of insurance claims, as well as consumer applications. See generally National Research Council, Networking Health: Prescriptions for the Internet (publication forthcoming 2000) [hereinafter Networking Health]. As one commentator stated, “Computers could be just the medicine the doctor ordered! The potential uses of the computer in the health care field are nothing short of phenomenal.” Barbara J. Tyler, Cyberdoctors: The Virtual Housecall—The Actual Practice of Medicine on the Internet is Here; Is It a Telemedical Accident Waiting to Happen?, 31 IND. L. REV. 259, 262 (1998).

The Internet health care industry as a whole is estimated to have done $6.4 billion worth of business in 1999, and is predicted to grow by almost 5500%—to $348 billion, or 16% of total U.S. health care trade—over the next 5 years, with an estimated $22 billion worth of this business conducted in the consumer-oriented market. See Tyler Chin, Internet Health Care Business on Verge of Boom, AM. Med. News, Jan. 31, 2000, at 19.

33 See Goldsmith, supra note 23, at 151. However, even the business of estimating the number of online users is a tricky practice. See Networking Health, supra note 32, at ES-2 (estimating that 30 million users searched for health information on the Internet in 1999).

34 Medline can be accessed through their Internet search engine, “Grateful Med” <http://igm.nlm.nih.gov/>. It is estimated that consumers now comprise 30% of Medline users. See Networking Health, supra note 32, at ES-2.

It goes without saying that not all health information on the Internet is reliable. See, e.g., Sandra G. Boodman, Medical Web Sites Can Steer You Wrong, WASH. POST, Aug. 10, 1999, at H7. Even the abstracts transcribed verbatim from peer-reviewed medical journals compiled on Medline may be inaccurate. See generally Roy M. Pitkin, et al., Accuracy of Data in Abstracts of Published Research Articles, 281 Jama 1110 (1999) (observing that data in abstracts of research articles found in Annals of Internal Medicine, Bmj, Jama, Lancet, Cmaj and New England Journal of Medicine was deficient due to inconsistencies or omissions in anywhere from 18% to 68% of the journal articles printed during a one-year period).

For a discussion of the potential liability concerns arising out of an Internet site providing defective or deficient content, see Nicolas P. Terry, Cyber-Malpractice: Legal Exposure for Cybermedicine, 25 AM. J.L. & MED. 327, 349-358 (1999).

35 Medline adds approximately 31,000 new citations a month, which raises concerns (which are beyond the scope of this article) about the ability of physicians to stay current with their medical knowledge. See P.R. Hubbs et al., Medical Information on the Internet, 280 Jama 1363, 1363 (1998); see also Goldsmith, supra note 23, at 152 (noting that physicians often do not have time to analyze carefully all of the current scientific knowledge posted on the Web).

36 See John P. Martin, A World of Support, WASH. POST, Aug. 31,1999, at Z10.

37 See Goldsmith, supra note 23, at 152.

38 See Drugstores on the Net: The Benefits of On-line Pharmacies: 1999 Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of Jodie Bernstein, Director, Bureau of Consumer Protection, Ftc) (explaining that in 1998, nearly 70% of adults in the U.S. sought health information online before visiting a doctor).

39 See Goldsmith, supra note 23, at 151; see also Nancy Ann Jeffrey, A Little Knowledge...Doctors are Suddenly Swamped with Patients Who Think They Know a Lot More Than They Actually Do, Wall ST. J., Oct. 19, 1998, at R8.

40 See Goldsmith, supra note 23, at 151. According to Jeff Goldsmith, “The Internet will not eliminate this disparity in knowledge [between doctor and patient], but it will enable patients to begin their dialogue with physicians at a much higher level and provide them with leverage to influence the care process.” Id. See also Barbara Tyler, supra note 32, at 263 (claiming that “the computer can offer a boon to all by empowering patients and by educating them to work with their physicians to effect better health. Information is power. Thus, computer use in the practice of medicine must be encouraged and expanded").

In a twist of Francis Bacon's famous axiom, “Knowledge is Power,” the slogan for the health information web site, drkoop.com, shows that their target market is the patient seeking empowerment: “The best prescription is knowledge.” drkoop.com (visited May 16, 2000) <http://www.drkoop.com>. For further discussion on how computers and the Internet impact on informed consent, see Arnold J. Rosoff, Informed Consent in the Electronic Age, 25 AM. J.L. & Med. 367, 372-79 (1999); Frances H. Miller, Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship, 31 Ind. L. Rev. 1019, 1032-41 (1998).

One concern for some physicians may be that the cyber-assisted patient could expose gaps in a physician's scientific knowledge. See Goldsmith, supra note 23, at 152. A question that remains to be answered is whether the increase in patient access to medical research and treatment information via the Internet will lead to an increase in the filing of malpractice suits, grievances with health care providers and complaints to state medical boards.

41 See Bob Cook, Internet Train Is Rolling But No One Knows Where It's Going, Am. Med. News, Oct. 4, 1999, at 23.

42 See id. At the October 27, 1998, Internet Health Day hosted by Intel, Andrew Grove, chairman of Intel, fired this warning shot: “[Physicians] can either participate in this revolution or be outsiders and bystanders to it.” Id.

43 See Craig Havighurst, Unlocking The Mailbox: Doctors Are Granting Patient Demands For E-Mail Access, But They Want A Few Ground Rules, Am. Med. News, Sept. 13, 1999, at 19. “With half the nation projected to be online early in the next decade and health care becoming one of the most sought-after subjects online, it's clear that patients will be in cyberspace and that e-mailing the doctor will soon feel as routine as e-mailing any professional associate.” Id. For an excellent dissection of the myriad legal issues arising out of the use of e-mail as a means of communication between providers and patients, see Alissa R. Spielberg, Online Without a Net: Physician-Patient Communication by Electronic Mail, 25 Am. J.L. & Med. 267 (1999) (noting that the use of e-mail in the medical practice has begun to reconfigure the patient-doctor relationship); see also Alissa R. Spielberg, On Call And Online: Sociohistorical, Legal And Ethical Implications Of E-Mail For The Patient-Physician Relationship, 280 Jama 1353, 1353 (1998); Ronald B. Kuppersmith, Is E-mail an Effective Medium for Physician-Patient Interactions?, 125 Arch. Otolaryngol. Head Neck Surg. 468, 468 (1999) (asserting that e-mail is an effective medium for physician-patient interactions).

44 See Havighurst, supra note 43, at 20.

45 See Beverley Kane & Daniel Z. Sands, Guidelines For The Clinical Use Of Electronic Mail With Patients, 5 J. Am. Med. Informatics Ass'N 104, 106-08 (1998). These guidelines address issues of proper protocol for physician engagement in e-mail communication with patients (i.e., do not use e-mail for urgent matters, to inform patients of privacy issues, or to make clear to patients what types of interactions are appropriate for doctor-patient e-mail communication), as well as issues relating to physician adherence to appropriate medicolegal standards for clinician-patient e-mail (i.e., consider obtaining informed consent from patients prior to e-mail use, do not forward patient-identifiable information to third parties without patient permission and backup e-mail with paper records). Id.

46 See American Medical Association House of Delegates Resolution 810 (A-99): Guidelines for Patient-Physician Electronic Mail (1999). The resolution has been referred to the Board of Trustees for consideration.

47 See Greg Barrett, Eyeing the Sky While Looking Deep Inside: Futurists See Bold Progress and Quest for Basics in New Millennium, USA Today, Nov. 23, 1999, at 5D c;'ing the 1899 remark of Charles Duell, director of the U.S. Patent Office).

48 See infra notes 54-72 and accompanying text.

49 See Tyler, supra note 32, at 259. See generally Jan Greene, Sign On and Say 'AH-H-H-H-H.' HOSP. & Health Networks, Apr. 20, 1999, at 45 (“You've heard of telemedicine, and now there's cybermedicine.”); Ranney V. Wiesemann, On-Line or On-Call? Legal and Ehical Challenges Emerging in Cybermedicine, 43 ST. Louis U. L.J. 1119, 1119 (Summer 1999) (describing cybermedicine as “the Internet driven practice of medicine where patients communicate with physicians (cyberdoctors) through electronic mail, and then the cyberdoctors diagnose the patient's ailments”); Nicolas P. Terry, Cyber-malpractice: Legal Exposure for Cybermedicine, 25 Am. J.L. & Med. 327, 327-28 (1999) (mapping theories of liability such as professional negligence, misrepresentation and products liability to cybermedicine fact patterns); see also infra notes 73-97 and accompanying text.

50 See Jay H. Sanders, Future Trends: Telemedicine, 82 Fed. Bull. 191, 191 (1995).

51 See generally David R. Johnson & David Post, Law and Borders—The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996) (proposing that Cyberspace requires a unique system of rules distinct from those governing physical, geographically defined territories).

52 Alison M. Sulentic, Crossing Borders: The Licensure of Interstate Telemedicine Practitioners, 25J.Legis. 1,3(1999).

53 There still may be some debate over whether certain telemedicine and cybermedicine practices constitute the practice of medicine as defined under state medical practice acts. See Sulentic, supra note 52, at 10-17. Nevertheless, in order to advance the discussion of the issue of state regulation of medical practice in a wired world, this Article is written from the perspective that routine telemedicine and cybermedicine interactions involving diagnosis or treatment constitutes the practice of medicine as defined by bodies such as the Federation of State Medical Boards, and is subject to regulation under state licensure laws. See Federation of State Medical Boards of The United States, inc., A Guide TO The Essentials of A Modern Medical Practice Act § II (8th ed., 1997) (defining the practice of medicine to include, inter alia, advertising, holding out to the public or representing in any manner that one is authorized to practice medicine in the jurisdiction; offering or undertaking to prescribe, order, give or administer any drug or medicine for the use of any other person; offering or undertaking to prevent or to diagnose, correct and/or treat in any manner or by any means, methods, devices or instrumentalities any disease, illness, pain, wound, fracture, infirmity, defect or abnormal physical or mental condition of any person).

54 Tyler, supra note 32, at 277.

55 U.S. Dep'T Com., Joint Working Group on Telemedicine, Telemedicine Report to Congress l (1997) [hereinafter Telemedicine Report to Congress]; see also Phyllis F. Granade & Jay H. Sanders, Implementing Telemedicine Nationwide: Analyzing the Legal Issues, 63 Def. Couns. J. 67, 67 (1996) (“Telemedicine is the use of telecommunications technology to provide health care services to patients who are distant from a physician or other health care provider.”). For further discussion of varying definitions of “telemedicine,” see Spielberg, supra note 43, at 287-88. For technical descriptions of how a telemedical system works, see Julie M. Kearney, Telemedicine: Ringing in a New Era of Health Care Delivery, 5 Commlaw Conspectus 289, 291-292 (1997); Daniel McCarthy, The Virtual Health Economy: Telemedicine and the Supply of Primary Care Physicians in Rural America, 21 Am. J.L. & Med. 111,113-16(1995).

56 See Telemedicine Report to Congress, supra note 55, at 85.

57 See Kearney, supra note 55, at 291.

58 See McCarthy, supra note 55, at 114-15 (describing the capabilities of the Medical College of Georgia project).

59 See U.S. Department of Health & Human Services, Office of Rural Health Policy, Exploratory Evaluation of Rural Applications of Telemedicine, Feb. 1, 1997 [hereinafter HHS Exploratory Evaluation]; see also McCarthy, supra note 55, at 67; Sanders, supra note 50, at 191.

60 See Andrea Hassol et al., Rural Applications of Telemedicine, 3 Telemedicine J. 215, 219 (1997) (providing a table showing the range of telemedicine applications); see also Christopher C. S. Lindberg, Implementation of In-home Telemedicine in Rural Kansas: Answering an Elderly Patient's Needs, 4 Am. Med. Informatics Ass'N 14, 14 (1997) (demonstrating an evaluation of the use of in-home telemedicine to provide healthcare for elderly and disabled people).

61 See HHS Exploratory Evaluation, supra note 59, at 31-39; see also Hassol et al., supra note 60, at 218; Center For Telemedicine Law, Telemedicine and Interstate Licensure: Findings and Recommendations of the CTL Licensure Task Force, 73 N.D. L. REV. 109, 111-13 (1997).

62 See Christopher Guttman-McCabe, Telemedicine's Imperiled Future? Funding, Reimbursement, Licensing and Privacy Hurdles Face a Developing Technology, 14 J. Contemp. H. L. &pol'y 161, 161-63 (1997).

63 As of July 1999, Arkansas, California, Georgia, Illinois, Iowa, Kansas, Montana, Nebraska, North Dakota, South Dakota, Texas, Virginia and West Virginia all allow Medicaid reimbursement for telemedicine services. See National Conference of State Legislatures, Health Policy Tracking Service Fact Sheet: Telemedicine (visited Jan. 31, 2000) <http://www.hpts.org>.

64 See Balanced Budget Act of 1997, Pub. L. No. 105-33 § 4206(a), 111 Stat. 377, 377-78.

65 See id. at 377-78; Medicare Program: Revisions to Payment Policies and Adjustments to the Relative Value Units Under the Physician Fee Schedule for Calendar Year 1999, 63 Fed. Reg. 58,814, 58,909-11 (1998) (to be codified at 42 C.F.R. §§ 410.78, 414).

66 See Balanced Budget Act of 1997, supra note 64, at 377-78.

67 See 63 Fed. Reg. 58,863, 58,880 (1998).

68 See id.

69 Comprehensive Telehealth Act of 1999, S. 770, 106th Cong., 1st Sess. (1999).

70 In fact, the Health Care Financing Administration (HCFA) regulations already define “residence” in a rural Health Professional Shortage Area to mean receiving teleconsultation services in such an area. See 63 Fed. Reg. 58,863, 58,880 (1998) (to be codified at 42 C.F.R. § 410.78(a)(3)).

71 See Tyler, supra note 32, at 284.

72 See infra notes 98-126 and accompanying text.

73 See Wiesemann, supra note 49, at 1138.

74 See Patricia C. Kuszler, Telemedicine and Integrated Health Care Delivery: Compounding Malpractice Liability, 25 AM. J.L. & MED. 297, 307, 310-15 (1999); Rashid L. Bashshur, Telemedicine Effects: Cost, Quality and Access, 19 MED. SYS. 81, 84-85, 88 (1995).

75 See Wiesemann, supra note 48, at 1125-26. For an excellent discussion of the liability issues surrounding cybermedicine, see Terry, supra note 34; see also Tyler, supra note 32, at 283; Wiesemann, supra note 48, at 1132-35.

76 Wiesemann, supra note 49, at 1143.

77 See id. at 1122-23. Cf. Granade & Sanders, supra note 55, at 69. As the authors state:

In most instances of current telemedicine practice, the patient's regular physician will be the one who determines the final course of treatment. In telemedicine there can be no traditional “referral,” where the patient will travel to the consulting physician's office to be treated by the new physician, and the new physician becomes solely responsible for the treatment he recommends. Instead, the interstate practice of telemedicine requires that a locally licensed physician retain control and be present during the consultative process. Under these circumstances, it can be argued that it doesn't matter if the telemedicine physician cannot make the final treatment decision, nor implement a course of treatment. All treatment decisions lie in the hands of the locally licensed physician.

Id. at 69.

78 See Tyler, supra note 32, at 284-86; see also Cyberdocs (visited Mar. 29, 2000) <http://www.cyberdocs.com>.

79 See Cyberdocs (visited Mar. 29, 2000) <https://www.cyberdocs.com/main.htm>.

80 See id. Acccording to the web site, once a consumer fills out the forms for the “Cybercash” credit card processing system, and completes the registration process, which requires personal background information, a medical history, and symptom list or medical question, the “Virtual Housecall” appointment will take place as follows:

[Y]ou will be brought to the CyberDocs “Doctor's Office,” where your physician, after briefly reviewing your supplied patient information, will join you in a secure, encrypted, “one-on-one,” virtual conference room environment. Your physician will then provide the type of service you requested during your registration for that visit. There is no “preset” format for your dialogue with the physician; the doctor may ask you additional questions, depending on the nature of your medical problem and will help guide you through your consultation.

If initiation of medical treatment is deemed warranted by your CyberDoc at the time of consultation, prescription medication can be provided by “pharmacy call-in” by the physician. If you are traveling or away from home, the CyberDocs physician can arrange delivery of U.S.-formulated prescription medication to almost anywhere in the World. If you are seeking an appointment with one of the non-Emergency Medicine specialists, and you need to submit electronic data such as ultrasounds or x-rays, you will be given specific instructions by the physician at the time of your consultation. At the conclusion of your online consultation, your CyberDoc will provide you with detailed Discharge Instructions. You may print these by clicking with your mouse on your browser's print button, or else “copy and paste” them with your mouse onto your own computer.

Cyberdocs (visited Mar. 29, 2000) <http://www.cyberdocs.com/howitowrks.htm>.

81 See Sheryl Gay Stolberg, Internet Prescriptions Boom in the “Wild West” of the Web, N.Y. Times, June 27, 1999, at Al.

82 See Bloom & Iannacone, supra note 2, at 831-32. At the time of the study, overseas companies were advertising for sale the weight loss drug orlistat (Xenical), which had not yet been approved by the Food and Drug Administration for sale in the U.S. See id.

83 In 1999, the U.S. Customs Service seized almost five times as many packages carrying prescription drugs that either failed to meet federal quality and purity standards or were not approved for use in the U.S. as they had in 1998. See Robert Pear, Online Sales Spur Illegal Importing of Medicine to U.S., N.Y. Times, Jan. 10, 2000, at Al.

84 See Bloom & Iannacone, supra note 2, at 832.

85 See Stolberg, supra note 81, at A14.

86 See Bloom & Iannacone, supra note 2, at 831.

87 See id.

88 See American Medical Association, Report of the Board of Trustees, 35-A-99, Internet Prescribing l, l (1999) (visited Apr. 14, 2000) http://www.amaassn.org/meetings/public/annual99/reports/onsite/bot/rtf/bot35.rtf [hereinafter Ama Report on Internet Prescribing].

89 See id.

90 See id.

91 See id. at 1,6.

92 See Bloom & Iannacone, supra note 2, at 832 (noting that consumers risk dangerous drug interactions if they purchase inappropriate pharmaceuticals). The ability to purchase pharmaceuticals via the Internet also increases the potential for resale abuse. See id.

93 See Stolberg, supra note 81, at A14.

94 See Virginia Postrel, Sometimes the Patient Knows Best, N.Y. Times, Jan. 3, 2000, at A19.

95 Id.

96 Id. For additional discussion on how this perspective complements the self-reliant, consumerism approach that is becoming more predominant in health care today, see Maxwell J. Mehlman, Medical Advocates: A Call for A New Profession, 1-SPG Widener L. Symp. J. 299, 310-11 (1996); see also supra notes 8-15 and accompanying text (articulating how this perspective argues for moving away from the approach first suggested by the Supreme Court in Dent v. West Virginia stating that the state's role is to protect the public).

97 Ama Report on Internet Prescribing, supra note 88, at l, 2.

98 See Telemedicine Report to Congress, supra note 55, at 27-41. For an in depth discussion of the various telemedicine licensure options outlined by the Joint Working Group on Telemedicine, see Sulentic, supra note 52, at 17-31.

99 See, e.g., ARK. Code Ann. § 17-95-206 (1997); Colo. Rev. Stat. Ann. § 12-36-106(a) (Bradford 1999); Conn. Gen. Stat. Ann. § 20-9(a), (d) (West 1999); GA. Code Ann. § 43-34-31.1(a) (Lexis 1999) (further providing that out of state practitioners cannot have ultimate authority over primary care or diagnosis of Georgia patients); ILL. Stat. Ann. ch. 225 § 60/49.5 (West 1998) (also providing that out of state telemedicine practitioners who treat Illinois residents subject themselves to Illinois jurisdiction); Ind. Code Ann. § 25-22.5-1-1.1(4)(A) (West Supp. 1999); Neb. Rev. Stat. § 71-1, 102 (Supp. 1998); Nev. Rev. Stat. § 630-020 (1999); N.C. Gen. Stat. ANN. § 90-18(b) (1999); Okla. Stat. Ann. tit. 36 § 6802 (West 1999); Utah Code Ann. § 58-1-307 (Supp. 1999).

100 See Sulentic, supra note 52, at 23.

101 See id.

102 An Act to Regulate The Practice of Medicine Across State Lines (Federation of State Med. Bds. of U.S. 1996).

103 See, e.g., ALA. Code §§ 34-24-502 (1997); S.D. Codified Laws ANN. § 36-4-41 (1998); TENN. CODE ANN. § 63-6-201 (1998).

104 See Sulentic, supra note 52, at 24. For example, the Model Act does not include the term “telemedicine” it its title; rather, it is titled the “Model Act to Regulate Medical Practice Across State Lines” and is written to cover not only electronic interactions, but any interactions that affect the treatment of a patient in another state. Under the Model Act, “the practice of medicine across state lines is defined to include any medical act that occurs when the patient is physically located within the state and the physician is located outside the state. Any contact that results in a written or documented medical opinion and that affects the diagnosis or treatment of a patient constitutes the practice of medicine. This is true whether the physician and patient are connected through telecommunications or whether patient data (such as x-rays, EKGs or laboratory tests) are transported by courier services or in some Other manner.” An Act to Regulate The Practice of Medicine Across State Lines (Federation of State Med. Bds. of U.S. 1996).

105 See Sulentic, supra note 52, at 24.

106 See id. at 25.

107 See id.

108 See Cal. Bus. & Prof. Code §§ 2052.5, 2290.5, 2060 (West 2000).

109 See id. §2052.5.

110 See, e.g., Wiesemann, supra note 49, at 1146.

111 See Marissa J. Ventura, The Great Multistate Licensure Debate, 62 RN 58, 58 (May 1999); Sulentic, supra note 52, at 29-35.

112 See Ventura, supra note 111, at 59.

113 See id. at 59-60.

114 See id. Cf. Sulentic, supra note 52, at 34-35.

115 See ARK. CODE ANN. § 17-87-601 (Michie 2000); 1999 MD. S.B. (signed Apr. 27, 1999); NEB.; 1999 N.C. SESS. LAWS 245; 2000 S.D. H.B. 1045 (signed Feb. 16, 2000); 1999 TEX. H.B. 1342 (signed June 19, 1999); UTAH CODE ANN. § 58-31-1 to 58-31-22 (1998); 1999 Wis. LAWS 22 (enacted Dec. 17, 1999).

116 See Delaware (H. 439), Idaho (H. 405), Iowa (H.F. 2105), and Mississippi (H. 535, S. 2904).

117 Cf. Uwe Reinhardt, Efficiency and Civility in Managed Care, or How Much Jell-O Can a Mother Eat?, 56 MED. CARE RES. & REV. 47, 47 (1999).

118 See Stolberg, supra note 81, at A14.

119 See Ohio Admin. Code § 4731-11-09(A) (1999). Exceptions are made for institutional settings, on call situations, cross-coverage situations, situations involving new patients, protocol situations, and nurses prescribing under standard care arrangements. See id.

120 Id. § 4731-11-09(E) (1999).

121 Id. § 473Ml-09(B)(2) (1999).

122 225 ILL . Comp. Stat. 85/16a (1998 & Supp. 2000).

123 See id.

124 See S.B. 155, 111th, 2nd Sess. (Ind. 2000); S. 385, 78th, 2000 Reg. Sess. (Kan. 2000); S. 1718, 22nd, 1999-2000 Reg. Sess. (N.Y. 1999); S. 300, 1999-2000 Reg. Sess. (Vt. 1999).

125 See Kip Betz, States Using Existing Tools to Crack Down on Illegal Internet Operators, 8 Health Care Pol'y Rep. (BNA) No. 7, at 276, 277 (Feb. 14, 2000).

126 See Internet 2000 Crime Bill, H.R. 1215 (Missouri, 2000 session).

127 See AMA Votes To Adopt Guidelines For Prescribing Medications Via Internet, 7 Health Care Pol'y Rep. (BNA) No. 7, at 1100 (July 5, 1999). According to testimony before Congress, the following should be present in an Internet physician-patient interaction concerning prescribing practices to ensure that the proper standard of care is upheld:

“There generally must be an examination of the patient to determine a specific diagnosis and whether there actually is a medical problem; There must be a dialogue between the physician and patient to discuss treatment alternatives and determine the best course of treatment; The physician must establish or have ready access to a reliable medical history; The physician must provide information to the patient about the benefits and risks of the outcome.”

Drugstores on the Net: The Benefits and Risks of On-line Pharmacies, 1999: Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of Herman I. Abromowitz, AMA) [hereinafter AMA Testimony].

128 AMA Testimony, supra note 127, at 255.

129 See id.

130 See Pharmacy Board Announces Approval Of First Three Online Practice Web Sites, 7 Health Care Pol'y Rep. (BNA) No. 37, at 1489 (Sept. 20, 1999).

131 See id. at 1489.

132 Arizona, California, Colorado, Connecticut, Illinois, Michigan, Kansas, Nevada, New Jersey, Ohio, Texas, Washington, Wisconsin and Wyoming have all taken actions against physicians for Internet prescribing. See U.S. Food and Drug Administration, Online Pharmacies FAQs, (last modified Jan. 28, 2000) <http://www.fda.gov/oc/buyonline/faqs.html> [hereinafter FDA FAQs]; see also Missouri: AG Seeks To Halt Prescription Drug Sales By Unlicensed Internet Site, 7 Health Care Pol'y Rep. (BNA) No. 29, at 1170 (July 19, 1999); Medical Board Suspends, Restricts License Of Physician Who Operated Viagra Web Site, 1 Health Care Pol'y Rep. (BNA) No. 27, at 1095 (July 5, 1999); Stolberg, supra note 81, at A14.

133 See, e.g., Mike Mckee, Hair loday. Gone Tomorrow, Legal Intelligencer, June 21, 1999, at 4; John Chase, Probation for Doctor in Viagra Web Case, CHI. TRIB., May 20, 1999, § Trib. West, at 1.

134 See Mckee, supra note 133, at 1; Naftali Bendavid, Prescriptions Via Internet Pose Dangers, CHI. TRIB., June 16, 1999, at 1.

135 See Consent Order for Robert Filice, M.D., Illinois Department of Professional Regulation case No. 1999-00696 (physician admits to unprofessional conduct for prescribing Viagra online, and is placed on probation for two years, assessed a $1,000 fine, required to discontinue prescribing medications on the Internet, and required to personally interview and examine patients prior to prescribing medications).

136 See Lesly C. Hallman & Joyce Cutler, Private Sector Seeks Regulations To Guide Growing Use Of Internet, .7 Health Care Pol'y Rep. (BNA) No. 10, at 428 (Mar. 8, 1999).

137 See Missouri: AG Seeks To Halt Prescription Drug Sales By Unlicensed Internet Site, supra note 132, at 1170 (citing Missouri v. Stallknecht, Mo. Cir. Ct., No. 99CV212429 (temporary restraining order obtained July 7, 1999)). The order was issued against the Texas-based online pharmacy <ThePillbox.com> and its owner. See id.

138 See Judge Blocks Internet Drug Sales By Texas Pharmacy Unlicensed in State, 7 Health Care Pol'y Rep. (BNA) No. 47, at 1885 (Dec. 6, 1999) (noting that a permanent injunction was obtained on Oct. 25, 1999 in the Stallknecht case).

139 See, e.g., Missouri v. Miles, Mo. Cir. Ct., No. 99CV217072-Div. 11 (permanent injunction issued Nov. 29, 1999); see also FDA FAQs, supra note 132.

140 See Drugstores on the Net: The Benefits and Risks of On-line Pharmacies, 1999: Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of the Honorable Carla Stovall, Attorney General, State of Kansas).

141 See Judge Blocks Internet Drugs Sales By Texas Pharmacy Unlicensed in State, supra note 138, at 1885.

142 See id.

143 See id.

144 See Drugstores on the Net: The Benefits and Risks of On-line Pharmacies, 1999: Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of Dr. Herman Abromowitz, AMA). However, there have been few media reports describing causal links between prescription medicines bought online and patient deaths. See, e.g., Douglas Holt, State Sues Out-of-State Internet Drug Dispensers, CHI. TRIB., Oct. 22, 1999, at 1 (describing how the death by heart attack of a 52-year-old man with a family history of heart problems could not be conclusively linked to his purchase of Viagra online).

145 See Stolberg, supra note 81, at Al.

146 See Michael A. Fletcher, The Crime Conundrum: Policing Is Tougher, Jails Fuller, And Crime Is At A 30-Year Low. Have We Finally Found The Weapons To Win The War On Lawlessness? The Jury Is Still Out, WASH. POST, Jan. 16, 2000, at Fl.

147 See Betz, supra note 125, at 276.

148 See Bloom & lannacone, supra note 2, at 831-32.

149 Stolberg, supra note 81, at A14.

150 See Sheryl Gay Stolberg, On-Line Prescription Practices Create Headache for Regulators, CHI. TRIB., June 27, 1999 § 1, at 8; Bendavid, supra note 134, at 1; Donna Greene, Q&A/Linda C. Fentiman: Call to Monitor Long-Distance Health Care, N.Y. Times (Westchester Ed.), May 9, 1999, at 3; Robin Herman, Drustores on the Net: It's Quick, It's Convenient and It's Unregulated. Consumers Run the Risk of Harm With Do-It-Yourself Prescriptions, WASH. POST, May 4, 1999, at Z14; Judy Foreman, No One's Watching On-Line Druggists, Boston Globe, Feb. 15, 1999, at El.

151 See Ama Report on Internet Prescribing, supra note 88, at 1.

152 See discussion supra notes 117-48 and accompanying text.

153 See Clinton Proposes Greater FDA Authority Over Online Pharmacies: Reactions Skeptical, 8 Health Care Pol'y Rep. (BNA) No. 1, at 5 (Jan. 3, 2000).

154 See House Members Ask FDA To Examine Growth Of Prescription Sales On Internet, 7 Health Care Pol'y Rep. (BNA) No. 26, at 1044 (June 28, 1999).

155 See FDA Launches New Web Site Offering Tips, Warnings For Online Shoppers, 8 Health Care Pol'y Rep. (BNA) No. 1, at 6 (Jan. 3, 2000).

156 See Drugstores on the Net: The Benefits and Risks of On-line Pharmacies: 1999 Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (FTC).

157 See Drugstores on the Net: The Benefits and Risks of On-line Pharmacies: 1999 Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of Ivan Fong, Deputy Associate Attorney General, Department of Justice).

158 See Drugstores on the Net: The Benefits and Risks of On-line Pharmacies: 1999 Hearing Before the Subcomm. on Oversight & Investigations, 106th Cong. (1999) (statement of Dr. Janet Woodcock, FDA).

159 See Food and Drug Administration, U.S. Department of Health and Human Services, FDA Talk Paper T00-9: Next Year's Budget Request For FDA (Feb. 7, 2000) (last modified Apr. 25, 2000) <http://www.fda.gov/bbs/topics/ANSWERS/ANS01002.html>.

160 Id.

161 See id.

162 See Comprehensive Telehealth Act of 1999, S. 770, 106th Cong., 1st Sess. (1999). This bill is currently being considered by the Senate Committee on Finance.

163 S. 770, 106th Cong., 1st Sess. (1999).

164 See id. § 201(A).

165 See id. § 201(B).

166 Id.

167 See Mark R. Yessian & Joyce M. Greenleaf, The Ebb and Flow of Federal Initiatives to Regulate Healthcare Professionals, in Regulation of The Health Care Professions 169 (Timothy S. Jost, ed.) (discussing the Medicare Peer Review Program, Medicaid drug utilization review requirements and the National Practitioner Data Bank).

168 Pub. L. 104-191, §264, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C. § 1320d-2).

169 See id. at § 261 (Subtitle F: Administrative Simplification).

170 See id.

171 See id.