Date: March 30, 2000
To: House Health Committee
Dale Van Vyven, Chairperson
From: John Olsen, MD.
Ohio State Radiological Society
Re: H.B. 585 Proposed Telemedicine Legislation
My name is John Olsen. I am a practicing radiologist, a member of the Ohio State Medical Association and a past president of the Ohio State Radiological Society, a statewide organization of over 800 radiologists dedicated to the practice of quality radiology in the State of Ohio.
We are in support of H.B. 585 which, with a few exceptions, would require that physicians practicing medicine on patients residing in Ohio including the practice of telemedicine be required to obtain Medical Licenses from the State of Ohio and would be subject to the Ohio Medical Board and to the jurisdiction of Ohio Courts. When I last spoke to you on this issue in February 1998, twenty-two states had adopted rules or legislation requiring such accountability for physicians practicing medicine on their citizens. Today, the number stands at thirty-two, and we expect Michigan and South Carolina to consider similar legislation this session.
As things stand now, any out-of-state physician may practice medicine on Ohio residents on a regular basis without being licensed as a physician in Ohio, without being subject to the jurisdiction of the Ohio State Medical Board and without being subject to our courts.
If you do not pass this or a similar law, an Ohio patient injured by an out-of-state physician may not be able to sue that physician in Ohio and instead may have to file suit in the physician’s home state. A patient’s ability to sue an out-of-state physician in the patient’s home state depends upon the state’s "long arm" statute and the Fourteenth Amendment’s due process clause. A long arm statute allows the courts of a state to assert jurisdiction over a non-resident defendant in certain circumstances. The due process clause limits this ability by providing that the non-resident defendant must have purposefully established contacts with the state.
There are a handful of cases which illustrate the issue of obtaining jurisdiction over out-of-state physicians. These go both ways, sometimes asserting jurisdiction, sometimes not. In a 1997 NY case [Ingraham v. Caroll] a New York woman traveled to Vermont to see a physician regarding a lump in her breast. Although the woman traveled to Vermont to see the physician, the Vermont physician sent instructions to the woman’s physicians in New York directing them to withhold any invasive procedures and to merely monitor the lump. By the time a correct diagnosis was made, the cancer had spread and would eventually cause the woman’s death. Her husband filed a malpractice claim in New York, but New York’s highest court said the state did not have jurisdiction over the Vermont physician. The husband would have to sue in Vermont.
In another case [Bullion v. Gillespie] a Texas woman traveled to California to participate in a clinical trial. After returning home, the patient and physician were in contact by telephone and the physician sent drugs through the mail. In this case, the court held that the California physician was subject to jurisdiction by Texas courts.
With cases going both ways, it is clear that the law is not settled. An Ohio court faced with a case involving malpractice through telemedicine would look to these jurisdictional cases and could decide either way. H.B. 585 eliminates the confusion and states that an out-of-state physician’s contact with an Ohio patient, whether written, oral, or electronic, is the practice of medicine, and the patient may seek redress in Ohio courts.
Medical practice acts in every state support licensure and restrict the practice of medicine including diagnosis and treatment to those who possess licenses to practice. Medical practice at a distance as in telemedicine should not be an exception to state medical practice acts, and in most states telemedicine is not an exception. In this regard we want Ohio to be like most states. The American Medical Association’s position is to require full and unlimited licensure. The American College of Radiology, our parent organization, published a national telemedicine standard in 1994 which calls for full licensure in both the sending and receiving sites.
Patient safety is the primary issue, and each state has the responsibility to protect its own constituents. Each state develops criteria for protection such as requiring medical practitioners to be licensed. Why should some Ohio citizens be potentially subjected to practitioners with lesser credentials?
The proposed legislation speaks to telemedicine and would address our concerns over accountability and responsibility both generically and specifically to the form of telemedicine known as teleradiology. The physician interpreting an image is responsible for image quality. This is clearly assumed in Ohio Department of Health rules developed in response to 1995 legistation on Radiologic Technologist licensure. All technologists administering ionizing radiation on Ohio residents are to be under the supervision of Ohio licensed practitioners.
Obtaining a license to practice medicine in the State of Ohio is not a difficult or onerous process for qualified applicants. Reputable practitioners of telemedicine are obtaining medical licenses in the sending state as well as in their home receiving state. I am familiar with national teleradiology services that obtain licenses to practice in every state from which they receive images. When images come from hospitals, they attempt to obtain privileges in those hospitals, and if possible become members of the medical staff.
This bill does not attempt anything unreasonable. The members of our organization commend the careful attention you are giving to this issue. We are confident that as you think in terms of safety and quality of care for the residents of Ohio, and accountability of practitioners, you will support H.B. 585.
Thank you.
