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Telemedicine and Integrated Health Care Delivery: Compounding Malpractice Liability

Published online by Cambridge University Press:  24 February 2021

Patricia C. Kuszler
Patricia C. Kuszler*
Affiliation:
University of Washington School of Law, University of Washington School of Medicine, University of Washington, School of Public Health and Community Medicine; Yale Law School; Mayo Medical School; Mills College
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Extract

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. Furthermore, who among us has not been transfixed watching and learning about open heart surgery on cable television? 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. Access, quality and cost of health care may all improve, but not without the sacrifice of some time-honored norms in medical practice.

Type
Articles
Information
American Journal of Law & Medicine , Volume 25 , Issue 2-3: Electronic Medical Information: Privacy, Liability & Quality Issues , 1999 , pp. 297 - 326
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1999

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References

1 Even in the early years of medical practice, physicians were quick to recognize the value of modern technology like the telephone and their potential for improving communication. See Joel D. Howell, Making a Medical Practice in an Uneasy World: Some Thoughts from a Century Ago, 72 Acad. Med. 977,978 (1997) (discussing the impact of the book, Daniel W. Cathell, the Physician Himself and What He Should Add to the Strictly Scientific (1882), on young physicians during that era).

2 See, e.g.. Live from the Operating Room: Open Heart Surgery as Entertainment, Time, Mar. 7, 1983, at 77.

3 The doctor-patient relationship stems from the personal interaction between the physician and the patient. See Robyn Meinhardt & Kenneth W. Landis, Bioethics Update: The Changing Nature of the Doctor/Patient Relationship, 16 Whittier L. Rev. 177, 177-80 (1995). To date, no consensus exists as to whether telemedicine improves or harms the traditional practice of medicine. See R. Wootton & A. Darkins, Telemedicine and the Doctor-Patient Relationship, 31 J. Royal C. Physicians London 598, 598 (1997). However, a relationship based on telemedicine technology is distinctly different from the face-to-face model of the past. See id. One of the few studies looking at patient attitudes toward telemedicine found that, before engaging in a telemedicine experience, patients were skeptical and believed it would not be as satisfactory as a face-to-face interaction. See Rashid L. Bashshur, Public Acceptance of Telemedicine in a Rural Community, 4 Biosclences Comm. 17, 34 (1978). However, this skepticism largely disappeared as patients became exposed to telemedicine and its capabilities. See id.

4 A telemedicine-based doctor-patient relationship will force rethinking of the physician's role—a transformation of his absolute authority in medical work to a role as a senior member of a health "team." See Ben Park & Rashid L. Bashshur, Some Implications of Telemedicine, 25 J. Comm. 161, 163 (1975). Indeed, psychological and cultural factors may affect physicians, nurses or patients, and limit the effectiveness and quality of the outcome. See id. at 165; see also R.C. King, Technology and the Doctor/Patient Relationship, 63 Postgraduate Med. J. 591, 591-92 (1987) (discussing the adjustments patients and doctors may need to make in light of telemedicine developments); Truls Ostbye & Petter Hurlen, The Electronic House Call—Consequences of Telemedicine Consultations for Physicians, Patients, and Society, 6 Archives Fam. Med. 266 (1997), available in Westlaw, Amajnls Database (discussing the new relationship that is likely to develop between patients and physicians as a consequence of the use of telemedicine).

5 See generally, James C. Robinson, The Dynamics and Limits of Corporate Growth in Health Care, Health Aff., Summer 1996, at 155 (discussing the transformation of the health care industry by means of horizontal and vertical integration and diversification strategies designed to coordinate services, to reduce excess capacity and to improve quality and cost effectiveness); Marc Grobman, Managed Care's Last Frontier, Bus. & Health, May 1997, at 31, available in LEXIS, News Library, ASAPII file (discussing expansion of integrated delivery system (IDS) products into rural marketplaces).

6 Physicians are three times more likely to be working in a group practice setting than they were a generation ago. See David W. Emmons & Carol J. Simon, Managed Care: Evolving Contractual Arrangements, in Socioeconomic Characteristics of Medical Practice 15, 16 (Martin L. Gonzalez ed. 1996). Moreover, the number of physicians who are employed, rather than independent practitioners, has grown dramatically. See id. By 1998, 54% of physicians worked as employees as opposed to only 29%, in 1983. See Phillip R. Kletke, Trends in Physicians' Practice Arrangements, in Socioeconomic Characteristics of Medical Practice 17, 18 (Martin L. Gonzalez & Puling Zhang eds. 1997/98). Ninety-two percent of physicians participate in one or more managed health care plans, if not as employees, then on a contract basis. See Carol K. Kane et al., Physician Managed Care Contracting, in Socioeconomic Characteristics of Medical Practice 7, 7 (Martin L. Gonzalez & Puling Zhang eds. 1997/98).

7 The last ten years have demonstrated a strong movement away from the independent, stand-alone community hospital to regional IDSs. See F. Kenneth Ackerman, III, The Movement Toward Vertically Integrated Regional Health Systems, Health Care Mgmt. Rev., Summer 1992, at 81, 81. In addition to a remarkable number of mergers between hospitals, hospitals demonstrated increased willingness to enter into affiliations with each other. See Sandy Lutz, Mergers and Acquisitions Report; 1995: A Record Year for Hospital Deals, Mod. Healthcare, Dec. 18, 1995, at 43, available in 1995 WL 2496743. A 1994 study conducted by Deloitte & Touche revealed that 81% of hospital chief executive officers predicted that their hospitals would not be operating on a stand-alone basis in the next five years. See Deloitte & Touche, U.S. Hospitals and the Future of Health Care 1 (1994). Of the inner city hospitals the survey considered, only 11% believed that they would continue as independent facilities in 1999. See id. at 2.

8 See Eleanor Hamburger et al., 77ie Pot of Gold: Monitoring Health Care Conversions Can Yield Billions of Dollars for Health Care, 1995 Clearinghouse Rev. 473, 475 (discussing Blue Cross of California's attempt to spin off a for-profit subsidiary using 90% of its assets, retaining only 10% of its assets in the parent for the purpose of maintaining its nonprofit status); see also Leonard D. Schaeffer, Health Plan Conversions: The View From Blue Cross of California, Health Aff., Winter 1996, at 183, 183 (discussing changes in the health care industry leading to the conversion of health care institutions from nonprofit to for-profit status). For an interesting series of articles exploring the trend of hospital and health plan conversions, see generally Health Aff., Mar.-Apr. 1997.

9 See Testimony on VA Health Care and Communication and Information Technologies Before the Subcomm. on Oversight and Investigations of the House Comm. on Veterans' Affairs, 102d Cong. (1994) (statement of Dr. Donald A.B. Lindberg, Director, National Library of Medicine), available in 1994 WL 377915 [hereinafter Statement of Dr. Lindberg].

10 For general definitions of telemedicine, see Weissert, William G. & Silberman, Susan, Health Care on the Information Highway: The Politics of Telemedicine, 2 Telemedicine J. 1, 1 (1996)Google Scholar (providing both a narrow and broad definition of telemedicine, and concluding that however it is defined, the technology "offers great potential to improve access to care for those removed by distance and circumstances from major tertiary-care centers"); Kathleen M. Vyborny, Legal and Political Issues Facing Telemedicine, 5 Ann. Health L. 61, 69-73 (1996) (defining telemedicine as "us[ing] a conduit to transmit patient information over distances to permit the physician to practice medicine from a remote location").

11 Teleradiology, the transmission of radiographic images, is the most commonly used and well-developed of telemedicine applications. See Jim Grigsby et al., Effects and Effectiveness of Telemedicine, Health Care Fin. Rev., Fall 1995, at 115, 115. This is due in part to the fact that radiologists traditionally have not had a personal doctor-patient relationship with the patients receiving their services. See id. As such, some of the larger, more regionalized applications of telemedicine have been in radiology. See Lewis S. Carey, Teleradiology: Part of a Comprehensive Telehealth System, 23 Radiologic Clinics N. Am. 357, 361 (1985); Solomon Batnitsky et al., Teleradiology: An Assessment, Radiology, Oct. 1990, at 11.

12 For example, one recent study focusing on the feasibility of telerobotic-assisted surgery found that an experienced operating team using a robotic system controlled by a surgeon at a remote site was able to perform a variety of surgical procedures without any adverse complications. See Louis R. Kavoussi et al., Telerobotic Assisted Laparoscopic Surgery: Initial Laboratory and Clinical Experience, 44 Urology 15, 16 (1994). In another study, brain surgery is performed with the use of a computerized, articulated, localizing "arm." See Maciunas, Robert J. et al., A Universal System for Interactive Image-Directed Neurosurgery, 58 Stereotactic Functional Neurosurgery 108, 108-09 (1992)CrossRefGoogle Scholar. The arm carries stereotactic surgical equipment that allows it to hone in on the operative site, guided by the surgeon and computer data of diagnostic studies and scans. See id. at 109.

13 See Tom Ferguson, Digital Doctoring—Opportunities and Challenges in Electronic Patient-Physician Communications, 280 JAMA 1361, 1361-62 (1998); see also Hiroshi Nagata & Hiroshi Mizushima, A Remote Collaboration System for Telemedicine Using the Internet, 4 J. Telemedicine & Telecare 89, 89 (1998) (describing a still-image telemedicine system developed by the authors that allows collaboration between two or more client computers located anywhere on the Internet); Massafumi Ohki et al., A Remote Conference System for Image Diagnosis on the World-Wide Web, 169 Am. J. Roentgenology 627, 627 (1997) (describing a web-based system that both transmits radiographic images and allows simultaneous consultation with remote radiology specialists).

14 For example, electronic stethoscopes may be used to allow more than one physician to auscultate the heart simultaneously. See Raymond L.H. Murphy et al., Accuracy of Cardiac Auscultation by Microwave, 63 Chest 578, 580 (1973). Similarly, electrocardiograms and echocardiograms have been successfully transmitted using telephone and facsimile lines to allow remote evaluation. See Walter L. Sobczyk et al., Transtelephonic Echocardiography: Successful Use in a Tertiary Pediatric Referral Center, 122 J. Pediatrics S84, S87 (1993); Charles A. Bertrand et al., Effectiveness of the Fax Electrocardiogram, 74 Am. J. Cardiology 294, 294 (1994).

15 See Gerhard Brauer, Telehealth: The Delayed Revolution in Health Care, 18 Med. Progress Through Tech. 151, 152-54 (1992) (discussing telehealth and teleeducation applications). Distance medical education has been used with great success for a number of years at the University of Washington School of Medicine. See M. Roy Schwarz et al., Communications Satellites in Health Education and Health Care Provision: The WAMI Experience, 250 JAMA 636, 636-37 (1983). The University of Washington's medical center was part of the WW AMI Rural Telemedicine Network demonstration project, designed to study the utility of telemedicine consultation by a tertiary care medical school facility to health care providers and patients in six remote towns. See WWAMI Rural Telemedicine Network—Welcome to the WWAMI Rural Telemedicine Network, (visited Mar. 30, 1999) <http://www.fammed.washington.edu/telemed/intro.html>. The WWAMI project involved participants in five states: Washington, Wyoming, Alaska, Montana and Idaho. See id. In particular, the WWAMI program allowed medical students to do a portion of their education and clinical clerkships in their home states, with teleconnections to the faculty and central university medical center. See Schwarz et al., supra, at 636-37; University of Washington School of Medicine—WWAMI Program (visited Mar. 30, 1999) <http://www-world.cac.washington.edu/medical/som/students/som_uwsomaa.html>. Community health education has also been furthered by use of electronic media, including the Internet and other online databases. See Katie Hafner, Can the Internet Cure the Common Cold, N.Y. Times, July 9, 1998, at Dl. For example, there are over 10,000 medical and health-related sites on the Internet. See id. For a discussion about the rise of computer-based patient and physician education tools, see generally Jennifer A. Gilbert, Patient Education in the Computer Age, Health Data Mgmt., May, 1998, at 90, available in Westlaw, Bamp database; P. Robert Hubbs et al., Medical Information on the Internet, 280 JAMA 1363 (1998).

16 One early telemedicine program funded by the National Institutes of Mental Health connected an isolated state mental health facility with the University of Nebraska Medical Center, allowing for two-way, televised group therapy. See Cecil L. Wittson & Reba Benshoter, Two Way Television: Helping the Medical Center Reach Out, 129 Am. J. Psychiatry 136, 136-38 (1972). Another program, initiated after an airplane crash at Boston's Logan Airport, connected airport medical personnel to Massachusetts General Hospital and allowed for transmission of x-rays and consultation. See Raymond L.H. Murphy & Kenneth T. Bird, Telediagnosis: A New Community Resource, 64 Am. J. Pub. Health 113, 114 (1974).

17 See Charles R. Doarn et al., Applications of Telemedicine in the United States Space Program, 4 Telemedicine J. 19,19-20(1998).

18 See id. at 19-21.

19 See id. at 20-21. Telemetry is the process of measuring the distance from an object to an observer. See Webster's New Collegiate Dictionary 1189 (1979).

20 See Doarn et al., supra note 17, at 21-27.

21 See id. at 21-22.

22 The project, named as the Space Technology Applied to Rural Papago Advanced Health Care, was a large-scale telemedicine project operated on the Papago Indian Reservation. See id. at 22-23. Although the health care providers, both physicians and physician assistants, were beset by equipment difficulties, the project was heralded for improving access to health care for a population that had previously had to travel great distances for health care services. See Michael Fuchs, Provider Attitudes Toward Starpahc: A Telemedicine Project on the Papago Reservation, 17 Med. Care 59, 64-66 (1979).

23 See Fuchs, supra note 22, at 66 (Table 1).

24 See Doarn et al., supra note 17, at 22.

25 See V. Garshnek, Applications of Space Communications Technology to Critical Human Needs: Rescue, Disaster Relief, and Remote Medical Assistance, 8 Space Comm. 311, 311-12 (1991).

26 See, e.g., Doarn et al., supra note 17, at 23 (discussing the early use of satellite telemedicine to facilitate disaster relief in the wake of earthquakes in Mexico City and Armenia); Garshnek, supra note 25, at 314 (same).

27 See, e.g., Dean E. Calcagni et al., Operation Joint Endeavor in Bosnia: Telemedicine Systems and Case Reports, 2 Telemedicine J. 211, 211-15 (1996) (discussing the early application of telemedicine by the United States military in Bosnia).

28 See Doarn et al., supra note 17, at 23-26.

29 See id. at 26.

30 See id. at 26-27.

31 See id. at 27.

32 See, e.g., Stacey Swatek Huie, Note, Facilitating Telemedicine: Reconciling National Access with State Licensing Laws, 18 Hastings Comm. & Ent. L.J. 377, 382 (1996) (describing a 1994 demonstration of a privately financed satellite telemedicine system).

33 See id. at 379-80.

34 See id. at 380.

35 See Bashshur, supra note 3, at 29; see also Telemedicine: A Guide to Assessing Telecommunications in Health Care 55-61 (Marilyn J. Field ed. 1996) (listing the types of telemedicine technology that are available and problems in their application); Sandy Campbell, Will Telemedicine Become as Common as the Stethoscope?, Health Care Strategic Mgmt., Apr. 1, 1997, available in 1997 WL 9416615 (indicating that about 25% of providers are now using telemedicine technologies); Diane Bloom et al., The Acceptability of Telemedicine Among Healthcare Providers and Rural Patients, Telemedicine Today, May-June 1996, at 5, 5-6 (summarizing positive responses of both patients and providers to interactive video telemedicine).

36 See Grobman, supra note 5, at 31. Managed care has been referred to as the "turbocharger" for telemedicine because the technology is seen as a way to improve service and cut costs. See Special Report, Managed Care Could Create a Technology Boom, Health Data Mgmt., July 19, 1995, available in 1995 WL 14387753.

37 See generally Dave Warner et al., Telemedicine and Distributed Medical Intelligence, 2 Telemedicine J. 295 (1996) (describing a telemedicine program that uses telemedical and health information technologies, including virtual reality simulations and hands-free, voice-operated telediagnostic tools, to improve patient care).

38 For example, one such application is a system that "understands" natural language information regarding diagnoses and identifies and encodes the information in digital format for use in data analysis. See Michael L. Gundersen, Development and Evaluation of a Computerized Admission Diagnoses Encoding System, 29 Computers & Biomedical Res. 351, 352 (1996).

39 See A Generation of Health Care Applications, Health Data Mgmt., Apr. 1, 1996, available in 1996 WL 9609552.

40 See Physician Insurers Ass'n of America, Telemedicine—A Medical Liability White Paper 1-2 (1998) (describing real-time consultations and store-and-forward technologies).

41 As telemedicine evolves, its definition is marked by increasing diversity of application. See Deborah R. Dakins & Kathy Kincade, The Best in the U.S.: Programs of Excellence 1997, Telemedicine & Telehealth Networks, Dec. 1, 1997, available in 1997 WL 15536265. For example, telepathology, telecardiology and teleradiology have all been added to the telemedicine lexicon. See Grigsby et al., supra note 11, at 115. Moreover, these applications are being deployed globally. See Overseas Consulting, Telefetal Monitoring Service Emerge, Telemedicine & Virtual Reality, Apr. 1998, at 48. Indeed, proponents argue that, although telemedicine was initially seen as an enabling technology, it is now being recognized as having applicability to the entire health care delivery system. See Electronic Commerce and Healthcare: Hearing before the Subcomm. on Health and Environment of the House Comm. on Commerce, 105th Cong. (1998), available in 1998 WL 296419 (statement of Jay H. Sanders, President and Chief Operating Officer, The Global Telemedicine Group).

42 See Dakins & Kincade, supra note 41. Allina Health System has replaced local emergency physicians with specially trained physician assistants in its rural hospital emergency departments. See id.

43 See id. Allina operated 27 linked urban and rural telemedicine sites in 1997, and expects the number of these networks to grow in the future. See id.

44 See id. (discussing Allina's investment and deployment of telemedicine throughout its health plan and constituents); see also Laura Meckler, Pushing Ahead with Telemedicine: Minnesota Company Sees Profit, Associated Press, Apr. 25, 1996, available in 1996 WL 4422369.

45 See Dakins & Kincade, supra note 41.

46 See Michael S. Sparer, Laboratories and the Health Care Marketplace: The Limits of State Workforce Policy, 22 J. Health Pol. Pol'Y & Law 789, 802-06 (1997) (discussing the geographic maldistribution of specialty care).

47 See Dakins & Kincade, note 41.

48 See id.

49 See Carole L. Mintzer et al., Program Activity in the Second Year of the Rural Telemedicine Grant Program, Part 1, Telemedicine Today, Oct. 1997, at 35, 35 (summarizing the activities of 13 rural telemedicine networks funded by federal grants).

50 See Howard Vincent, Rural Health Care: The Drive to Survive the 21st Century, Teleconference, Jan.-Feb. 1996, at 9-10.

51 See Sheldon Weisgrau, Issues in Rural Health: Access, Hospitals, and Reform, Health Care Fin. Rev., Fall 1995, at 1, 1-2 (1995).

52 See Daniel McCarthy, The Virtual Health Economy: Telemedicine and the Supply of Primary Care Physicians in Rural America, 21 Am. J. Law & Med. 111,111 (1995).

53 See id. at 112.

54 For example, one recent study showed that two-thirds of rural facilities surveyed were using only teleradiology. See Andrea Hassol et al., Rural Applications of Telemedicine, 3 Telemedicine J. 215, 215 (1997). Of the programs pursuing other clinical applications, 67% had been using telemedicine for two years or less. See id. at 216. The most common applications were radiology, cardiology and orthopedics. See id. at 219 (Table 3).

55 See Balanced Budget Act of 1997, Pub. L. No. 105-33, § 4206(a), 111 Stat. 337, 337-76.

56 See Dakins & Kincade, supra note 41 (discussing Allina's efforts in rural telemedicine emergency services and consultations); see also Grobman, supra note 5, at 31 (discussing managed care's use of telemedicine to expand into rural areas).

57 See Terry Wheeler, Stars and Bars: Corrections-Based Telemedicine Programs Top Most-Active List, Telemedicine Today, June 1998, at 38, 38-39 (profiling several prison telemedicine programs).

58 See Robert M. Brecht et al., The University of Texas Medical Branch—Texas Department of Criminal Justice Telemedicine Project: Findings from the First Year of Operation, 2 Telemedicine J. 25, 25-26 (1996) (discussing Texas's extensive prison telemedicine program).

59 In the Texas prison telemedicine project, for example, 1,715 consults occurred over a one-year period. See id. at 29 (Table 1). Ninety-five percent of the telemedicine consults saved one or more trips to University of Texas Medical Branch for outpatient specialty appointments. See id. at 31. User surveys indicated a high degree of satisfaction on the part of patients, presenters and specialty consultants. See id. at 32.

60 See Ilene Warner, Telemedicine in Home Health Care: The Current Status of Practice, Home Health Care Mgmt. & Prac, Feb. 1998, at 62, 62-63.

61 See id. at 65; Bill Siwicki, Home Care Market Offers Telemedicine Opportunities, Health Data Mgmt., May 1, 1996, available in 1996 WL 9609664.

62 See Ilene Warner, Telemedicine Applications of Home Health Care, 3 J. Telemedicine … Telecare 65, 65-66 (Supp. 1 1997).

63 See Technology Update: Telemonitoring Systems for Home Healthcare Believer Ranks Growing as Equipment Comes to Market, Home Health Bus. Rep., Jan. 1995, at 10, 10-12.

64 See Siwicki, supra note 61.

65 See id.

66 See 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.

67 See National Library of Medicine, The Visible Human Project (visited Mar. 30, 1999) <http://www.nlm.nih.gov/research/visible/visible_human.html>.

68 See generally William R. Hersh & David H. Hickman, How Well Do Physicians Use Electronic Information Retrieval Systems?: A Framework for Investigation and Systematic Review, 280 JAMA 1347 (1998) (examining the various electronic databases and their use, concluding that they are, as yet, poorly utilized); David L. Sackett & Sharon E. Strauss, Finding and Applying Evidence During Clinical Rounds: The "Evidence Cart", 280 JAMA 1336 (1998) (discussing the utility of providing doctors with a portable cart loaded with computers, CD-ROMs and electronic databases, all of which enable doctors to have easy access to relevant medical information to be used in clinical decision making).

69 For example, documents published by the Department of Health and Human Services (HHS) can be accessed through <http://www.hhs.gov>.

70 See Jeffrey, supra note 66, at R8 (reporting on the proliferation of information many patients find on the Internet, and how some of these patients trust medical information obtained from a web site or chat room more than they trust their own physicians' advice for treatment).

71 See id.; William M. Bulkeley, E-mail Medicine: Untested Treatments, Cures Find Stronghold in On-line Services, Wall St. J., Feb. 27, 1995, at Al.

72 See Stephen M. Borowitz & Jeremy C. Wyatt, The Origin, Content, and Workload of E-mail Consultations, 280 JAMA 1321, 1321 (1998) (documenting e-mail consultation requests from all over the world to a pediatric gastroenterology group at a children's medical center); Bulkeley, supra note 71, atAl .

73 See Statement of Dr. Lindberg, supra note 9.

74 See Bashshur, Rashid L., On the Definition and Evaluation of Telemedicine, 1 Telemedicine J. 19, 20-21 (1995)CrossRefGoogle Scholar (discussing the need for a redefinition of telemedicine).

75 See id. at 21.

76 See Statement of Dr. Lindberg, supra note 9.

77 See id.; see also Dereck L. Hunt et al., Effects of Computer-Based Clinical Decision Support Systems on Physician Performance and Patient Outcomes, 280 JAMA 1339, 1340 (1998) (describing available electronic databases).

78 See Statement of Dr. Lindberg, supra note 9.

79 See id.

80 See id.

81 See id.

82 Indeed, one Veterans' Administration hospital has converted entirely to digital radiology—its radiology center is "filmless." See id.

83 See id.

84 See id.

85 See id.

86 See Jean P. Hubble et al., Interactive Video Conferencing: A Means of Providing Interim Care to Parkinson's Disease Patients, 8 Movement Disorders 380, 381-82 (1993).

87 For example, the National Library of Medicine funds the Integrated Advance Information Management Systems Program, which seeks to link key clinical, educational and research databases and systems, and make them accessible to users. See Statement of Dr. Lindberg, supra note 9.

88 See Bashshur, Rashid L., Telemedicine Effects: Cost, Quality and Access, 19 J. Med. Sys. 81, 82 (1995)CrossRefGoogle Scholar. Rashid Bashshur, who has written extensively on telemedicine, argues that the first generation of telemedicine projects generated interest, but little impact, because the projects were too limited in design and lacked sufficient time for users to gain familiarity with the technology and to build institutional commitment. See id. at 83. As a result, the projects of the 1970s generally expired and were not continued or evolved into ongoing enterprises. See id.

89 See id. at 89.

90 See id. at 82.

91 Section 4206 of the Balanced Budget Act of 1997 (BBA) directs the Secretary HHS to provide Medicare reimbursement for the use of telemedicine in rural areas with a shortage of health professionals by no later than January 1, 1999. See Pub. L. No. 105-33, § 4206(a), 111 Stat. 377, 377-78 (1997). This was a significant concession by the federal government, which had long spurned reimbursement for provider patient interactions that did not involve face-to-face contact. The new measure is not without limitations. Payments are to be shared among the practitioners, with the total cost not to exceed the reimbursement for a traditional consultant visit. See id. § 4206(b)(1). In addition, there is no reimbursement for line or facility charges. See id. § 4206(b)(2). The Telecommunications Act of 1996, and the subsequent Federal Communications Commission Universal Services Order of May 8, 1997, also provided funds for telecommunication discounts to be used by rural health care facilities. See 47 U.S.C. § 254(h)(1)(a) (1997); Universal Service Order, 62 Fed. Reg. 32,862, 32,898 (1997). Moreover, BBA section 4207 creates a new four-year telemedicine pilot program for management of diabetes mellitus—a common disease of the elderly. See § 4207, 111 Stat, at 379.

92 See Bashshur, supra note 88, at 87.

93 See id. at 87-88.

94 Despite many well reasoned efforts, the definition of quality of care and its measurement have bedeviled health policy scholars and analysts for many years. See Avedis Donabedian, The Quality of Care; How Can It Be Assessed?, 260 JAMA 1743, 1748 (1988). At present, quality appears to be measured by either outcomes analyses or patient satisfaction measurements. See Paul M. Ellwood, Shattuck Lecture—Outcomes Management: A Technology of Patient Experience, 318 New Eng. J. Med. 1549, 1551-52(1997).

95 See Bashshur, supra note 88, at 90.

96 See id.

97 See id. at 85-86.

98 See id. at 84-85 (citing technological failures in the first generation of telemedicine systems).

99 See Barry R. Furrow Et Al., Health Law § 6-1, at 234-36 (1995).

100 See id. § 6-2, at 237-39.

101 See id. §6-1, at 234.

102 See Weaver v. University of Mich. Bd. of Regents, 506 N.W.2d 264, 265-66 (Mich. Ct. App. 1993) (outlining the plaintiffs care by a number of physicians over time).

103 See id.

104 See Ostbye & Hurlen, supra note 4.

105 See Doarn et al., supra note 17, at 24-25.

106 See Ostbye & Hurlen, supra note 4. 107 see Weaver, 506 N.W.2d at 267-68. 108 See Ricks v. Budge, 64 P.2d 208, 211 (Utah 1937).

109 The no-duty concept harkens back to the classic case of Hurley v. Eddingfield, 59 N.E. 1058 (Ind. 1901) (holding that a physician had no duty to come to the aid of a seriously ill patient even though the physician was the patient's family doctor). For a modern day application, see Salas v. Gamboa, 760 S.W.2d 838 (Tex. 1988). In this case, the father of a newborn delivered at home sought care for the distressed infant at a nearby pediatrician's office. See id. at 839. Unaware of the infant's distress, the pediatrician declined to see the patient and directed the father and infant to a nearby hospital. See id. The court held that no implicit contract arose between the parties and that the physician had no duty to undertake the care of the patient. See id. at 838.

110 Once a physician has agreed to provide care, he is compelled to continue care to its natural conclusion. See Ricks, 64 P.2d at 211.

111 See Weaver, 506 N.W.2d at 266 (holding that "a telephone call merely to schedule an appointment with a provider of medical services does not by itself establish a physician-patient relationship where the caller has no ongoing physician-patient relationship with the provider and does not seek or obtain medical advice during the conversation").

112 See, e.g., Childers v. Frye, 158 S.E. 744, 746 (N.C. 1931) (holding that a physician who declined to assume the care of a motor vehicle accident victim because the victim appeared intoxicated was not bound to render medical services); Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Civ. App. 1969) (finding that no relationship existed where a doctor, contacted via telephone about an emergency room patient, told the emergency room staff to have the patient contact her own doctor in another city).

113 For example, in Miller v. Sullivan, a dentist experiencing back pain, shortness of breath and other symptoms called a physician friend and related his complaints over the phone. See 625 N.V.S.2d 102, 103 (App. Div. 1995). The physician urged the dentist to come to the physician's office immediately for evaluation. See id. at 104. The dentist disregarded this advice; instead, he finished seeing his scheduled patients and then proceeded to the physician's office, where he suffered a cardiac arrest moments after arrival. See id. Finding in favor of the defendant-physician, the court held that the physician-patient relationship had not been formed because the plaintiff had disregarded the preliminary advice offered over the telephone. See id.

114 239 S.E.2d 103 (Va. 1977). The Lyons court held that "[w]hether a physician-patient relationship is created is a question of fact, turning upon a determination [of] whether the patient entrusted his treatment to the physician and [whether] the physician accepted the case.” Id. at 105.

115 See id.

116 See id. at 104.

117 See id.

118 See id.

119 See id.

120 See id. at 105.

121 557 N.Y.S.2d 139(1990).

122 See id. (holding that whether a physician-patient relationship existed in such a context is a question for the jury to decide).

123 For example, in Clanton v. Von Haam, a patient with severe back pain called a physician she had previously seen for other ailments. 340 S.E.2d 627, 628 (Ga. Ct. App. 1986). The physician listened to her complaints but refused to see her that evening, instead agreeing to see her in the morning if her pain persisted. See id. The court held that, although a patient might have relied on this advice, the plaintiff in this case had not relied on the physician's telephone conversation, had indeed interpreted the conversation as a refusal to see her and was not dissuaded from continuing to seek care from another provider. See id. at 630-31; see also Miller v. Sullivan, 625 N.Y.S.2d 102, 104 (App. Div. 1995) (holding that to find a physician-patient relationship existed where a physician gave medical advice over the telephone, the plaintiff must show "that it was foreseeable that the prospective patient would rely on the advice and that the prospective patient did in fact rely on the advice").

124 See, e.g., Bovara v. St. Francis Hosp., 700 N.E.2d 143, 145 (111. App. Ct. 1998).

125 See, e.g., Bienz, 557 N.Y.S.2d at 139-40 (holding that whether a physician-patient relationship was created by a telephone call made for the purpose of initiating treatment was a question of fact for the jury to decide); Weaver v. University of Mich. Bd. of Regents, 506 N.W.2d 264, 266 (Mich. Ct. App. 1993) (holding that a single telephone call, without any effort to obtain medical advice during the conversation, was insufficient to create a physician-patient relationship).

126 See, e.g., Clanton, 340 S.E.2d at 629-30 (requiring a showing of reliance on the medical advice of the physicians by the patients to their detriment in order to sustain claims of medical malpractice).

127 See Gunther Eysenbach & Thomas L. Diepgen, Responses to Unsolicited Patient E-mail Requests for Medical Advice on the World Wide Web, 280 JAMA 1333, 1334 (1998).

128 See Clanton, 340 S.E.2d at 629-30.

129 See Alissa R. Spielberg, On Call and Online: Sociohistorical, Legal and Ethical Implications of E-mail for the Patient-Physician Relationship, 280 JAMA 1353, 1357 (1998) (explaining that e-mail from a physician to a patient constitutes part of that patient's medical record and should be retained for medical as well as legal reasons).

130 See supra Part II.B (describing the telemedicine technology).

131 See supra notes 37-40 and accompanying text.

132 See, e.g., Bovara v. St. Francis Hosp., 700 N.E.2d 143, 147 (111. App. Ct. 1998). In Bovara, a cardiologist based his decision to prescribe an angioplasty procedure entirely on the recommendation of the cardiac interventionists who interpreted the patient's angiogram. See id.

133 For example, in Baker v. Story, a resident performing a surgical procedure asked the supervising neurosurgeon whether he (the resident) was about to cut the correct anatomical structure. See 621 S.W.2d 639, 640 (Tex. App. 1981). The neurosurgeon assured the resident that he was correct and the resident followed the direction. See id. Unfortunately, the neurosugeon's judgment was incorrect and the patient sustained injuries. See id. Ultimately, the appellate court recognized that the neurosurgeon could be held liable because he was the supervising physician and remanded the case to the lower court for trial. See id. at 645-46. Note, however, that physicians who merely proctor other physicians for peer review and credentialling processes are not considered supervisors. See Clarke v. Hock, 219 Cal. Rptr. 845, 851 (Ct. App. 1985) (holding that by proctoring, a physician did not establish a relationship with the proctoree's patient).

134 See Bovara, 700 N.E.2d at 149 (reversing a trial court's holding that cardiac interventionists owed no duty to an angioplasty patient whom they had not met, but whose medical record they had discussed).

135 See id.

136 520 N.E. 2d 468 (Ind. Ct. App. 1988).

137 See id. at 470.

138 See id.

139 See id. at 471.

140 See id. at 472; see also Dougherty v. Gifford, 826 S.W.2d 668, 675 (Tex. App. 1992) (holding that a consensual physician-patient relationship exists when services are contracted with the express or implied consent of the patient or for the patient's benefit).

141 See, e.g., Phillips v. Good Samaritan Hosp., 416 N.E.2d 646, 649 (Ohio Ct. App. 1979).

142 700 N.E.2d 143 (111. App. Ct. 1998).

143 See id. at 144.

144 See id. at 145.

145 See id.

146 See id. The primary cardiologist testified that he did not know how to read the angiogram and relied on the opinion of the cardiac interventionist consultants in counseling the patient as to treatment options. See id.

147 See id.

148 See id. at 146.

149 See id. at 145.

150 See id. at 146.

151 See id. at 149.

152 See id. at 147-48.

153 660 N.E.2d 235 (111. App. Ct. 1996). For a discussion of how the facts of Bovara and Reynolds differ, see 700 N.E.2d at 147 (finding that unlike the physician consultant in Reynolds, who merely suggested a test and did not assume responsibility for portion of the patient's diagnosis or treatment, the cardiac interventionists in Bovara reviewed and interpreted the test results).

154 See Reynolds, 660 N.E.2d at 237. The senior physician was not serving in a supervisory capacity with respect to the pediatrician. See id. at 237-38.

155 See id. at 237.

156 See id.

157 See id.

158 See id.

159 See id. at 239.

160 See id. at 237.

161 For example, in Hill by Burston v. Kokosky, a physician who was telephoned by a colleague and provided an informal opinion on a patient at the request of the colleague was found to have no relationship with the patient. See 463 N.W.2d 265, 268 (Mich. Ct. App. 1990). The court reasoned that the consulted physician did not even know the name of the patient and was not asked to consult on her care. See id. at 267. The consultant's only role was in discussing the patient's case with the colleague who called him. See id. The attending physician was free to use or discard the information because the consultant was not serving in any supervisory or consulting capacity. See id.

162 See, e.g., Oliver v. Brock, 342 So. 2d 1, 4 (Ala. 1976) (holding that a telephone discussion between the attending physician and consultant, in which advice was solicited casually and the patient's condition was only generally described by the attending physician, did not create a physician-patient relationship between the consultant and the patient).

163 692 N.E.2d 1045 (Ohio 1997).

164 See id. at 1046.

165 See id.

166 See id.

167 See id.

168 See M. at 1047.

169 See id.

170 See id. at 1049-50.

171 581 N.W.2d 739 (Mich. 1998).

172 See id. at 744; .see also Pope v. St. John, 901 S.W.2d 420, 424 (Tex. 1995) (holding that an on-call physician's telephone advice that the patient be transferred to another hospital did not give rise to a physician-patient relationship).

173 See Oja, 581 N.W.2d at 741.

174 See id.

175 See id.

176 See id.

177 See id. at 744.

178 Several criteria indicate whether a relationship between a consultant and patient is formed, including whether the consultant has met and examined the patient, reviewed the patient's records, was informed of the patient's name or billed the patient for services rendered. See Reynolds v. Decatur Mem'l Hosp., 660 N.E.2d 235, 239 (111. App. Ct. 1996). However, it is not necessary that all of these factors be present for a court to find that a relationship was formed. See Phyllis Forester Granade, Medical Malpractice Issues Related to the Use of Telemedicine: An Analysis of the Ways in Which Telemedicine Affects the Principles of Medical Malpractice, 73 N.D. L. Rev. 65, 69 (1997).

179 See w . Page Keeton Et Al., Prosser and Keeton on the Law of Torts § 32, at 174 (5th ed. 1984).

180 See Robbins v. Footer, 553 F.2d 123, 127-28 (D.C. Cir. 1977).

181 See id. at 128. Specifically, the locality rule prescribed that the physician had a duty to exercise the same degree of skill and care ordinarily employed by other members of the profession practicing under similar circumstances in the same locality. See id. This standard accommodated the wide variation in information access, facilities and experience between urban and rural communities and the difficulties of establishing a standard that could be adopted and applied in such widely divergent circumstances. See id. However, adherence to the rule sometimes effectively immunized doctors who were the only practitioners in a locality and allowed doctors isolated in small communities to lapse into a lower standard or care, undeterred by risk of liability. See id.

182 See, e.g., Livengood v. Howard, 295 N.E.2d 736 (111. 1973) (holding an otolaryngologist to the standard of ear, nose and throat care in Peoria, Illinois).

183 See Robbins, 553 F.2d at 128. This expanded version of the locality standard holds physicians to the standard of care and skill "in the same or a similar locality, under the same or similar circumstances." See Quintal v. Laurel Grove Hosp., 397 P.2d 161, 164 (Cal. 1964).

184 See Granade, supra note 178, at 75.

185 See Fitzmaurice v. Flynn, 256 A.2d 887, 891 (Conn. 1975). The defendant in Fitzmaurice argued that the "general neighborhood" dictated that the relevant area was the town or city in which the care had been provided. See id. at 891-92. The court ultimately rejected this construction, concluding that the "general neighborhood" was the entire state of Connecticut. See id. at 892.

186 See id. at 892; Vasquez v. Markin, 731 P.2d. 510, 516 (Wash. 1986).

187 See Sheeley v. Mem'l Hosp., 710 A.2d 161, 167 (R.I. 1998) (finding that a specialist who is a board-certified obstetrician was presumptively qualified to render an opinion in a case involving another obstetrician). In endorsing a national standard of care, the Sheeley court stated that:

[accordingly, we join the growing number of jurisdictions that have repudiated the "same or similar" communities test in favor of a national standard and hold that a physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.

Id.

188 349 A.2d 245 (Md. 1975).

189 See id. at 252.

190 See id. (citing developments in other jurisdictions).

191 See id.

192 See P. Loula et al., Distributed Clinical Neurophysiology, 3 J. Telemedicine & Telecare 89, 90 (1997) (describing telemedicine consultation forums in which neurophysiologist clinicians can obtain a second opinion using interactive data and video consultations or using data-only consultations).

193 Over half of the jurisdictions have adopted the national standard with respect to specialist standard of care. See Jay M. Zitter, Annotation, State of Care Owed to Patient by Medical Specialist as Determined by Local. Like Community," State, National, or Other Standards, 18 A.L.R. 4th 603, 607, 614 (1981 & 1998 Supp.).

194 579 A.2d 177 (D.C. 1990). For a similar illustration, see also Crites v. Pietilia, 826 S.W.2d 175 (Tex. App. 1992) (discussing use of fetal monitoring, rather than merely ascertaining fetal heartbeat, to evaluate a pregnant woman who sustained injuries from a car accident).

195 See Washington Hosp. Ctr., 579 A.2d at 180.

196 See id.

197 See id. at 182. − See id. at 183.

199 See Frances H. Miller, Medical Discipline in the Twenty-First Century: Are Purchasers the Answer?, 60 Law & Contemp. Probs. 31,44 (1997).

200 There is already concern that telemedicine has some risks as a result of a continuing shortage of network professionals and unreliability of the Internet network, especially for video and voice applications. See Monua Janah, Health Care by Cisco, Infor. Wk., Feb. 23, 1998, at 116, available in 1998 Wl 2358723.

201 See Jay H. Sanders & Rashid L. Bashshur, Challenges to the Implementation of Telemedicine, 1 Telemedicine J. 115, 120 (1995) (discussing the effect of telemedicine on the standard of care and the impact of an objective record detailing medical interventions).

202 646 So. 2d 1152 (La. Ct. App. 1994). − See id. at 1156.

203 See id. at 1160.

205 Such liability may be in the form of a lawsuit alleging simple negligence or negligence based on the theory of res ipsa loquitur. See, e.g., Shepardson v. Consolidated Med. Equip., Inc., 714 A.2d 1181 (R.I. 1998) (finding the hospital, surgeon and manufacturer negligent for a burn sustained by a three-year-old patient from malfunctioning electrocautery); Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973) (involving a patient who successfully sued a surgeon, anesthesiologist and hospital based on res ipsa loquitur after sustaining burns from the negligent use of electrocautery during prolonged surgical procedure).

206 See, e.g., supra notes 194-98 and accompanying notes (discussing Washington v. Washington Hosp. Ctr., 579 A.2d 177 (D.C. 1990)).

207 See, e.g., Carey v. Lovett, 622 A.2d 1279 (N.J. 1993). In this case, a pregnant woman with a high-risk pregnancy was admitted to the hospital with uncontrolled diabetes. See id. at 1282. The hospital staff failed to detect fetal heart sounds using two different devices on multiple occasions. See id. at 1283. Believing the fetus to be dead, the providers made no effort to stop the premature labor. See id. Shortly thereafter, a premature live infant was born. See id. The infant subsequently succumbed to complications of premature birth. See id. A malpractice lawsuit brought by the infant's parents resulted in a two million dollar judgment. See id. at 1282. The New Jersey Supreme Court, however, set aside the original award and remanded the matter back to the trial court for further determination. See id. at 1292.

208 386 A.2d 413 (N.J. Super. Ct. App. Div. 1978) [hereinafter Anderson II] . This case affirmed the jury's verdict from the second trial of plaintiff s case, which dismissed the plaintiffs claims against the physician and the hospital, but found the instrument's manufacturer and distributor liable to the plaintiff. See id. at 415.

209 See id. at 415-16.

210 See W. at 415.

211 See id.

212 See Anderson v. Somberg, 338 A.2d 1, 3 (N.J. 1975) [hereinafter Anderson I].

213 See id.

214 See Anderson II, 386 A.2d at 415.

215 See Anderson I, 338 A.2d at 4. At the close of the second trial, the jury returned a verdict for the plaintiff against the instrument's manufacturer and distributor. See Anderson II, 386 A.2d at 415. Moreover, the trial judge also ordered the manufacturer to indemnify the distributor for its liabilities arising from the plaintiffs case. See id. These dispositions were affirmed on appeal. See id. at 421. Similar manufacturing liability claims have resulted from cases of equipment failure. See, e.g., Airco, Inc. v. Simmons First Nat'l Bank, 638 S.W.2d 660 (Ark. 1982) (finding manufacturers of an artificial breathing machine liable for its malfunction); Kennedy v. McKesson Co., 448 N.E.2d 1332 (N.Y. 1983) (upholding a claim by a dentist against the manufacturer of anesthetic equipment when the dentist's patient died allegedly as a result of the equipment's malfunctioning).

216 See Janah, supra note 200, at 116.

217 See Doarn et al., supra note 17, at 21-27; Schwarz et al., supra note 15, at 637-39.

218 Indeed, such misreading of verbal signals is common even absent high technology communication. For example, in Bovara v. St. Francis Hospital, a telephone call from the consultant's office, the content of which was disputed, led the primary cardiologist to recommend the fateful surgery for the patient. See 700 N.E.2d 143, 145-46 (111. App. Ct. 1998).

219 The unreliability of Internet communication capability has already resulted in consideration of cell-based technologies, which are considered more reliable. See Janah, supra note 200, at 116.

220 See Bashshur, supra note 74, at 21-22; Janah, supra note 200, at 116.

221 See Bashshur, supra note 74, at 21.

222 See Rhonda L. Rundle, Tenet and MedPartners Agree to Form Health Network in Southern California, Wall St. J., Apr. 10, 1997, at B4 (describing the formation of a health care network including 33 hospitals and more than 4,000 physicians, an arrangement that is "one of the most visible examples so far of how major health-care players are attempting to create big integrated networks that take advantage of economies of scale to gain market share").

223 See Campbell, supra note 35.

224 See generally Paul Starr, the Social Transformation of American Medicine 440-49 (1982) (discussing the transformation of American health care into a corporate structure).

225 See Robinson, supra note 5, at 156.

226 See Barbara Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 Mercer L. Rev. 1219, 1231 (1997).

227 Until the middle of this century, hospitals regularly escaped liability for malpractice that occurred within their walls because they enjoyed charitable immunity. See Pierce v. Yakima Valley Mem'l Hosp., 260 P.2d 765, 773 (Wash. 1953). This immunity harkened back to the traditional charitable bases on which most hospitals had been founded and maintained. See id. at 762. As hospitals became entrepreneurial and sophisticated corporate entities, this immunity eroded. See id. at 770. Even after the demise of charitable immunity, hospitals escaped liability by virtue of the fact that the physicians were viewed as independent contractors who used the hospital only as a "workshop" and "borrowed" the servants (nurses and other hospital employees) within. See William Trail & Susan Kelley-Claybrook, Hospital Liability and the Staff Privileges Dilemma, 37 Baylor L. Rev. 315, 322 (1985). As the proverbial "captain of the ship," liability for negligence generally rested with the physician. See Van Hook v. Anderson, 824 P.2d 509, 514 (Wash. Ct. App. 1992).

228 See Noah, supra note 226, at 1232. 229 See id. at 1237.

230 See Keeton Et Al., supra note 179, at 500 § 69.

231 See Noah, supra note 226, at 1237-38.

232 143 N.E.2d 3 (N.Y. 1957).

233 Id. at 9.

234 See id. at 8.

235 See generally Van Hook v. Anderson, 824 P.2d 509 (Wash. Ct. App. 1992) (discussing and rejecting the "captain of the ship" doctrine).

236 See Trail & Kelley-Claybrook, supra 227 at 317; see also supra note 6 and accompanying text (discussing solo practitioners becoming employed by or engaged in contractual partnerships with one or more integrated managed care plans). In the past, physicians contracted with hospitals for clinical privileges and held the status of independent contractors. See Richard L. Griffith & Parker, Jordan M., With Malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians in Negligent Credentialing Litigation, 22 Tex. Tech. L. Rev. 157, 161 (1991)Google Scholar. This arrangement is still common. See id. at 162 (stating that physicians remain legally designated as independent contractors). However, an increasing number of physicians are now "hospital based" and have entered salaried, employment contracts with hospitals. See Arthur F. Southwick, the Law of Hospital and Health Care Administration 546 (2d ed. 1988) (citing the increase in "the number and frequency of salaried arrangements" between physicians and hospitals as one factor encouraging courts to expand the applicability of respondeat superior in the health care setting). Similarly, with the movement away from traditional indemnity and Blue Cross plans, health plans have largely converted to managed care plans which either employ or selectively contract with a credentialed subset of physicians. See Barry R. Furrow Et Al., Health Law Cases, Materials and Problems 454-56 (3d ed. 1997).

237 See, e.g.. Van Hook, 824 P.2d at 509 (holding the hospital liable for the negligence of its employee nurses); Sloan v. Metropolitan Health Council of Indianapolis, Inc., 516 N.E.2d 1104 (Ind. Ct. App. 1987) (holding a health maintenance organization (HMO) liable under the theory of respondeat superior for the negligence of an employee-physician).

238 See Noah, supra note 226, at 1240 & n. 101.

239 See id. An early application of the ostensible agency doctrine appears in Grewe v. Mount Clemens Hospital, 273 N.W.2d 429 (Mich. 1978). Since then, it has been applied in numerous cases and its definitional qualities have been fleshed out. See, e.g., Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (discussing the application of ostensible agency to a hospital that had contracted with an independent group of emergency physicians to serve in the hospital's emergency department); Clark v. Southview, 628 N.E.2d 46 (Ohio 1994) (holding a hospital liable under ostensible agency theory for the negligence of an emergency physician who was an independent contractor).

240 For example, in Kashishian v. Port, a hospital was found liable, under the theory of ostensible agency, for negligence committed by an independent, but on-call cardiologist, called in to see an inpatient by the attending physician. See 481 N.W.2d 277, 278 (Wis. 1992). The court held that ostensible agency theory can apply even in this scenario because the patient reasonably believed that the cardiologist was a hospital employee. See id. at 278.

241 See Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1234-35 (Pa. Super. Ct. 1988). This success has been tempered somewhat by federal preemption, pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), of cases in which the IDS represents a self-funded employee benefit plan. See, e.g., Ricci v. Gooberman, 840 F. Supp. 316, 317-18 (D.N.J. 1993) (holding that ERISA preempts an employee's claim that her HMO was vicariously liable for the actions of an employed physician).

242 Such HMOs are often referred to as open panel HMOs. See Furrow Et Al., supra note 236, at 528. The HMO may create a panel or network of physicians by contracting with individual, unaffiliated physicians, or with a group of physicians who have joined together in an individual practice association (IPA) or preferred provider organization. See id. at 521-22.

243 See Boyd, 547 A.2d at 1234-35; Schleier v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 876 F.2d 174, 177-78 (D.C. Cir. 1989). But see Raglin v. HMO Illinois, 595 N.E.2d 153, 158 (111. App. Ct. 1992) (holding that an IPA is not vicariously liable for physician negligence); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 253 (Mass. App. Ct. 1991) (declining to hold an HMO liable on the grounds that there was insufficient evidence to show that the HMO exerted control over the providers).

244 See Noah supra note 226, at 1233. As in the case of vicarious liability, such lawsuits may be preempted by ERISA. See Kuhl v. Lincoln Nat'l Health Plan, 999 F.2d 298, 303 (8th Cir. 1993). Recently, however, ERISA preemption has begun to erode especially with respect to claims asserting that the actions of the health plan were part and parcel of the negligent medical care delivered to the patient. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 351-52 (3d Cir. 1995).

245 See, e.g., Simmons v. Tuomey Reg'l Med. Ctr., 498 S.E.2d 408, 410-11 (S.C. Ct. App. 1998) (holding that "a hospital's duty to its emergency room patients to provide competent medical care" is so important to the community that the duty is incapable of being delegated). Nondelegable duty is an established exception to the general rule that employers are not liable for the actions of an independent contractor. See Keeton Et Al., supra note 179, § 71.

246 743 p.2d 1376 (Alaska 1987).

247 See id. at 1377.

248 See id.

249 See id. at 1382.

250 See Thompson v. Nason, 591 A.2d 703, 707 (Pa. 1991) (noting that liability based on the theory of corporate negligence gives rise to a nondelegable duty that the hospital owes to its patients).

251 211 N.E.2d253 (III. 1965).

252 See id. at 256.

253 See id.

254 See Thompson, 591 A.2d at 707 (citing Darling v. Charleston Community Memorial Hospital as one of the first cases in the evolution of corporate negligence claims against hospitals).

255 See generally Trail & Kelley-Claybrook, supra note 227, at 322-27 (discussing the hospital's duty to ensure care for their patients).

256 591 A.2d at 703 (Pa. 1991).

257 See id. at 705.

258 See id. at 707.

259 See id.

260 See id.

261 See id.

262 See id.

263 See, e.g., Fridena v. Evans, 622 P.2d 463 (Ariz. 1980) (accepting the doctrine of corporate liability and applying it in the context of a hospital's negligent supervision of a physician); Elam v. College Park Hosp., 183 Cal. Rptr. 156 (Ct. App. 1982) (holding that, under the doctrine of corporate negligence, a hospital is liable to a patient for the negligent conduct of independent physicians and surgeons who, "as members of the medical staff, avail themselves of the hospital facilities"); Corleto v. Shore Mem'l Hosp., 350 A.2d 534 (N.J. 1975) (holding that a hospital could be held directly liable for giving staff privileges to an incompetent physician and for failing to remove a known incompetent doctor from performing hospital duties when problems became obvious).

264 See, e.g., Petrovich v. Share Health Plan of 111., Inc., 696 N.E.2d 356 (111. App. Ct. 1998); Raglin v. HMO 111., Inc., 595 N.E.2d 153 (111. App. Ct. 1992); Dunn v. Praiss, 656 A.2d 413 (N.J. 1994).

265 604 A.2d 1053 (Pa. Super. Ct. 1992).

266 See id. at 1059. The McClellan court found it unnecessary to apply the doctrine of corporate negligence to the IPA model health plans, largely because they were subject to a similar duty under the Restatement of Torts. See id. at 1059. However, the court did hold that IPA-model HMOs were subject to the credentialling and rule-making responsibilities. See id.

267 718 A.2d 828 (Pa. Super. Ct. 1998). In this case, a pregnant woman called her HMO and her HMO obstetrician when she began to experience pain she felt might indicate pre-term labor. See id. at 832. For several days, she was reassured that she was not experiencing labor, although no definitive exam or test was performed. See id. As the patient became progressively more uncomfortable, her calls to the physician and HMO were repeatedly and curtly rebuffed. See id. Finally, she was directed to the hospital where she delivered a premature infant who died shortly after birth because of extreme prematurity. See id.

268 Id. at 835-36.

269 239 Cal. Rptr. 810 (Ct. App. 1986).

270 See id. at 814-15.

271 Id. at 819 (emphasis added).

272 See Brian P. Battaglia, The Shift Toward Managed Care and Emerging Liability Claims Arising from Utilization Management and Financial Incentive Arrangements Between Health Care Provider and Payers, 19 U. Ark. Little Rock L.J. 155, 196 (1997).

273 See Campbell, supra note 35.

274 See id. This is compounded by the national effort to develop the electronic information infrastructure. See id.; see also Special Report: Managed Care Could Create a Technology Boom, Health Data Mgmt., July 19, 1995, available in 1995 WL 14387753 (noting that the competitive, quickly developing, digital communications industry is beginning to target the health care sector—a development that could lead to reduced prices associated with the purchase of telemedicine equipment as competition in the health care sector increases).

275 See Dakins & Kincade, supra note 41 (discussing Allina's telemedicine program for rural emergency health care services).

276 See Vera Tweed, The Brave New Reality of Telemedicine, Bus. & Health, Sept. 1, 1998, at 34, available in 1998 WL 13573164 (describing the use of physician extenders and telemedicine to deliver rural emergency care in Minnesota); Dave Swartz, The Saint Francis Emergency Room Telemedicine System: Marriage of Technology and Business Models, Telemedicine Today, Aug. 1997, at 28, 28-29 (describing similar systems in Oklahoma).

277 See Tweed, supra note 276, at 34.

278 See id.

279 This is the typical method by which specialist consultations are provided in telemedicine systems. See id.

280 See supra Part III.A. 1 (discussing factors that establish a physician-patient relationship during a telephone conversation).

281 See supra Part Iii.A.2 (discussing factors leading to the establishment of a relationship between a consultant and patient).

282 See supra notes 132-62 and accompanying text (differentiating between formal and casual consultations).

283 See supra notes 236-37 and accompanying text (discussing application of the theory of respondeat superior).

284 See supra notes 238-43 and accompanying text (discussing ostensible agency theory).

285 See supra Part IV.B (discussing direct liability theory).

286 The allegation in such a case would be improper selection and credentialling of a health care organization's medical staff.

287 See supra notes 245-50 and accompanying text (discussing nondelegable duty theory).

288 See supra Part Iii.B-C (discussing liability premised on a failure to provide appropriate technology or to use the technology properly).

289 See supra note 271 and accompanying text (discussing "design defect" liability).

290 See Washington v. Washington Hosp. Ctr., 579 A.2d 177, 180 (D.C. 1990) (predicating a negligence claim against a hospital on its failure to install a carbon dioxide monitor in the operating room to assist its surgeons in determining whether the patient had sufficient oxygen during surgery).

291 See supra note 215 (discussing claims based on manufacturer liability).

292 See Eysenbach & Diepgen, supra note 127, at 1334-35.