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I. Introduction
A. Paper Goals and the Purpose of the Iowa Cyberspace Law Seminar
B. Model Cyberspace Implementation Plans for Southeast Asia
C. Paper Organization
II. Telemedicine History and Development
A. Modern Technological Requirements and Capabilities
B. Telemedicine Research and Development
C. Telemedicine Implementation in International Markets: Focus on the Pacific
Rim
D. Healthcare Delivery Needs in Vietnam
1. Organization of Vietnam's Healthcare System
2. Telemedicine Potential
III. Telemedicine Policy Considerations and Implementation Obstacles: Findings of the 1996 Joint Working Group on Telemedicine
A. Inadequate Infrastructure
B. Missing Technical and Practice Standards
C. Patient Privacy and Security
D. Payment for Telemedicine Services
IV. Telemedicine and the Problem of Medical Licensure
1.Establishing a Physician-Patient Relationship
2. The Telephone Consultation Analogy
3. Consultations in Cyberspace
B. Federal Authority to Regulate Interstate Practice of Telemedicine
1. Supremacy Clause Implications
2. Commerce Clause Implications
3. Privileges and Immunities Clause Considerations
C. Does Congress have the Power to Regulate Telemedicine?
D. JWGT Proposals for Overcoming Licensure and Obstacles
E. Summary
V. Vietnam as a Potential Telemedicine Consumer: Global Telecom's "Vietmed" Plan
A. Background
B. The Vietmed Proposal
C. Implementation Plan
D. Anticipated Implementation Obstacles
VI. Conclusion
Summary -- Telemedicine involves the long-distance transmission of
information relating to patient care, health administration, and medical
education. It holds the promise of improved healthcare for people everywhere,
yet it faces serious development and implementation obstacles. This paper
discusses legal and social policy issues posed by telemedicine practice
in both domestic and global contexts. It focuses on the problems of regulating
telemedicine practitioners across state and international boundaries, and
addresses the practical limitations of current medical licensing protocols
in a global cyberspace community. Ultimately, it argues that national or
international licensing programs may help harmonize practice standards,
and improve telemedicine delivery.
The paper then investigates the feasibility of international telemedicine.
As a simulation exercise of the Iowa Cyberspace Law Seminar, it proposes
a plan for implementing a telemedicine system in Vietnam. The plan involves
the fictitious corporation, Global Telecom, a leader in telecommunications
technology. Global Telecom's "Vietmed" System will connect rural
and urban Vietnamese doctors to American practitioners, and deliver cutting-edge
health education, information, and patient-centered services. This hypothetical
system is proposed as a cooperative project between the Vietnamese government,
private industry, and not-for-profit funding organizations.
"Can somebody help us?" they wrote. "This is the first
time that the Chinese try to find help from [the] Internet...please send
e- mail back to us."
In early 1995, doctors at the Beijing University Hospital sent e- mail
messages on the Internet to the international medical community asking
for help in diagnosing and treating a severely ill patient. Zhu Lingling
was a university chemistry student who entered the hospital in 1994 for
nausea. Soon, her hair fell out and her face was paralyzed. By March, 1995,
she had not responded to treatment and was in a vegetative state. Response
soon came from 600 physicians and researchers across North America and
Europe. The dialogue that resulted helped to save Zhu Ling's life.
Zhu Ling's story is posted on the web.
Yet cyberspace medical care poses serious social, political, and
legal questions regarding the notion of "presence" in "virtual"
as compared to "real" communities.(2)
A recent paper asserts that the rise of cyberspace through the implementation
of a global computer network is "destroying the link between geographical
location" and our historical system of rule-making, and that the cyberspace
world requires new approaches to defining legal personhood and property
and resolving disputes.(3) Some on line users have, in fact, begun the
process of developing systems of self-governance.(4)
Nagging questions remain. These include:
Should cyberspace be thought of as its own "place," its own legal jurisdiction, separate from arbitrary state and international boundaries?
Is it changing the dynamics of human interaction, including the physician-patient
relationship?
Does it pose questions that are fundamentally different from ones
related to conventional face-to-face medical practice for doctors and healthcare
consumers?
Should laws regulating medical practice be different in cyberspace?
Will "self-governing" mechanisms adequately protect healthcare
consumers from medical hucksters?
In the virtual world of cyberspace, who will regulate the practice
of "cyberdoctors," and protect the interests of "cyberpatients?"
How can we ensure that accountability will guide the actions of interstate
and international cyberhealth practitioners?
How will the continuing "corporatization" of medicine --
including the rise of HMOs within the health care industry -- influence
the development of cybermedicine practice guidelines and regimes?
The emergence of self-governance systems for various cyberspace communities
has been noteworthy.(5-7) Yet communication within these communities is
made possible through the transmission and reception of energy impulses
through various physical media (wires, atmosphere, space). Ultimately,
what will happen when this largely intangible and invisible cyberspace
world becomes the "place" for the commission of real-world, tangible
torts relating to medical malpractice?
Perhaps the social structures and conventions that have evolved to regulate
the conduct of medical practitioners in real space and time will be asserted
in cyberspace. State-recognized, "self- regulating" bodies such
as the American Medical Association (AMA), may extend their reach into
cyberspace, and prepare to meet the needs of even longer-distance patient
care.
C. Paper Organization
This paper is organized into several parts.
Part II provides an overview of the American telemedicine experience.
It defines telemedicine and discusses the technological innovations that
promise to make "healthcare in absentia" in countries such as
Vietnam more common.
Part III identifies some of the legal and public policy issues that
need to be addressed before telemedicine becomes more prevalent in the
United States and abroad.
Part IV provides a focused legal analysis of one of these
issues: medical licensure in the "non-geographical" world of
cyberspace.
Part V details Global Telecom's plan for introducing telemedicine
in Vietnam. This Part provides a brief overview of the history, culture
and economy of Vietnam. It then identifies the economic opportunities that
Vietnam presents to Global Telecom.
Part VI returns to Zhu Ling's story and considers the future of
telemedicine practice.
The e-mail message reached Beijing University Hospital: Zhu Ling
had the symptoms of thallium poisoning. Thallium levels in Zhu Ling's body
were fifty times higher than the normal level found in Beijing city dwellers.
Thallous sulfate is a chemical that is still used as a rodenticide.
Zhu Ling's international telemedical network doctors and toxicologists
began strategizing with Chinese doctors about treatment. The doctors began
chelation therapy with Potassium Ferric ferrocyanide, a common chemical
dye known as Prussian Blue. Zhu Ling's body started excreting the thallium.
Telemedicine is the "use of telecommunications for medical diagnosis
and patient care."(8) Telemedicine was implemented when the first
doctor sent the first telegram related to a medical issue, or received
the first emergency telephone call.(9) Telemedicine can involve the use
of any telecommunications or other electronic devices to transfer medical
information over distances. In the case of Zhu Ling, telemedicine was defined
by e-mail communications about her condition. The information may be related
to health administration, medical education, or patient care.
The need to provide improved healthcare to under-served populations, in
rural and urban areas, was a motivating factor in the development of telemedicine.(10)
In the 1950's, the National Institutes of Mental Health funded the first
formal telemedicine project.(11) A closed circuit telephone system 1,278
miles in length connected seven midwestern hospitals and provided for weekly
teleconferencing lectures.(12) Teleradiology had its first application
in Canada shortly thereafter.(13)
A. Modern Technological Requirements and Capabilities
Modern telemedicine systems rely on microwave transmission technology,
including satellite transmissions, and electronic computer based transmissions.(14)
Although usually thought of as far more involved than mere voice phone
communication, telemedicine systems can be classified by degree of complexity.(15)
Level 1 Systems. The least complex system might use one-way visual
technology to transmit still images, supplemented by telephone consultation.
The system is both simple and efficient, but it is limited in the types
of care that it can deliver.
Level 2 Systems. The next level of sophistication could be represented
by systems that have both one-way video and one-way audio capability. Health
education systems, used by teaching hospitals and institutions involved
in continuing medical education programs, rely on these "middle level"
systems.
Level 3 Systems. The most sophisticated systems simulate full remote
examinations of patients and are based on interactive teleconferencing
systems. They can transmit two-way video and audio signals and can be configured
to transmit the electronic output of diagnostic instrumentation, such as
sonograms, electrocardiograms, and electroechograms.
The Medical College of Georgia's telemedicine project exemplifies
level 3 systems.
Level 3 telemedicine research and development continues to be robust, perhaps
because of continuing advances in communication, information, and computer
technologies. The economic incentive to develop new products based on advancing
technologies may be spilling over to telemedicine.
Advances in technology are making cost-effective use of telemedicine possible.
As one author noted, communications equipment is smaller and less expensive
today. Fiber optic-based communication will also help to reduce costs.(17)
B. Telemedicine Research and Development
Telemedicine offers an approach to improving domestic and international
healthcare. The federal government continues to encourage telemedicine
innovation by funding university and corporate telemedicine programs.(18)
The private sector's interest in developing advanced telemedicine systems
might be connected to aggressive competition for telecommunications revenues.
Examples of academic, corporate, and government initiatives include:
Academic Initiatives. Researchers at the Mayo Clinic, in collaboration
with NASA,
To reach World Wide Web health consumers, Mayo recently introduced
its Health Oasis site.
Governmental Initiatives. The Departments of Agriculture, Commerce,
Defense, Justice, Health and Human Services, NASA, and Veterans Affairs
sponsor a range of telemedicine projects. These projects are aimed at improving
rural health care, developing new satellite platforms for telemedicine
signal delivery, and designing computerized "field doctors" for
remote medical treatments in isolated areas.
According to the GAO, federal departments and agencies invested more
than $646 million on telemedicine projects between 1994 and 1996. The Defense
Department, the leading government supporter, spent over $220 million in
telemedicine research and development during the same interval.(20)
Corporate Initiatives. The availability of government grants originally
encouraged corporations to investigate telemedicine technology. Companies
such as Hughes and Lockheed Martin, both satellite developers, are currently
involved in a range of telemedicine field projects.(21) Survey evidence
now suggests that a majority of telemedicine implementers are investing
their own funds for program start-up and funding -- a sign that the industry
may be maturing.(22)
Corporations are implementing a range of telemedicine projects. For
example, Hughes recently introduced a briefcase-sized telecommunications
unit that can receive and transmit digital services.
Other projects include the implementation of low earth orbit (LEO)
systems from companies including Orbcomm
C. Telemedicine Implementation in International
Markets: Focus on the Pacific Rim
A recent report indicates that telemedicine is playing an increasingly significant role in Asian healthcare markets. Hospitals are being constructed or reorganized to facilitate the expansion of telemedicine services. Moreover, several companies have launched telemedicine plans for the Pacific Rim. Active countries include China and Malaysia.
China. China unveiled plans to use satellite links to build a telemedicine network with Interstate Electronics, an American corporation. According to one report, a month long pilot program using IEC's satellite system provided bandwidth on demand VSAT capabilities, and demonstrated that high quality radiological images could be transmitted across the country.(27)
The GAO recently reported to Congress that dealing with the Chinese government and Chinese corporations has presented some difficulties for American companies and the United States Department of Commerce, relating to export controls in the sale of "strategic" telecommunications equipment.(28) In 1995-1996, SCM Brooks Telecommunications, a U.S. Limited partnership, closed negotiations with Galaxy New Telecommunications, a Chinese company primarily owned by an agency of the Chinese military, for the sale of asynchronous transfer mode (AST) and synchronous digital hierarchy (SDH) equipment.(29)
According to the GAO Report, AST and SDH are "dual use" telecommunications technologies, having applications in both military and civilian situations.(30) Some U.S. Government officials believed that the Chinese military was more interested in updating their command and control centers with AST and SDH than in implementing telemedicine projects.(31)
Liberalization of NATO export controls to former communist countries meant that it was easier for SCM and Galaxy to make the transaction. Under the new GLX license category, exporting companies, rather than the Department of Commerce, were charged with determining primary end-user groups of dual use equipment.(32)
Making this determination, particularly for China, is difficult. Little information is available to exporters regarding the level of Chinese Military involvement in potential trading partners. As a result, the GAO recommended to Congress that it may be necessary to provide information or guidance to exporters "to help them determine when they should request a government review of an end- user."(33)
Malaysia. The Malaysian government is committed to funding telemedicine technology and infrastructure, as part of its Multimedia Super Corridor (MSC) Project.(34) The primary motivation is to serve underserved rural populations at reduced costs.(35)
According to Malaysian Prime Minister Dr. Mahathir Mohamad, telemedicine may contribute to better medicine for a greater number of people.(36) He envisions that, as part of the MSC, telemedicine could help create a Southeast Asian regional medical services and education hub in Malaysia. Reports indicate that Australia is "keen" on collaborating with Malaysia, "in developing telemedicine to make [it] a global interactive market."(37)
D. Healthcare Delivery Needs in Vietnam
Vietnam, perhaps more than any country, could benefit from improved
healthcare delivery. Compared to the Malaysian system or the Chinese healthcare
system, the Vietnamese healthcare system is understaffed and underfunded.(38)
Thirty years of war have left the Vietnamese health care system devastated.
Effective healthcare delivery is hampered by Vietnam's poverty, its struggling
economy, and its underdeveloped communications and transportation infrastructures.
The country faces serious medical and public health risks from outbreaks
of malaria; respiratory diseases; diarrhoeal diseases; tuberculosis; measles;
dysentery; dengue fever; chronic malnutrition; viral encephalitis; and
leprosy.
1. Organization of Vietnam's Healthcare System
In theory, health care is delivered in Vietnam according to the four-level
organizational system of the Ministry of Health. From bottom to top, these
levels are the communal, district, provincial, and central (nationwide).(41)
The infrastructure permits extensive geographic coverage of the country.
Primary healthcare is administered at approximately 9,000 communal health
care centers. One- or two room dispensaries found within isolated rural
villages, the communal centers are staffed by nurses or "health officers"
but rarely by doctors. Generally, they are ill-equipped in terms of actual
and diagnostic facilities.(42)
About 500 district-level hospitals have capacities ranging from
50 to 200 beds. Urban district hospitals are usually better equipped than
rural ones, but both have severely limited resources by American standards.(43)
Provincial level hospitals hold between 300 and 800 beds. They are
usually founded in larger cities. Since provincial level hospitals are
forced to compete with larger national facilities for resources, they generally
have limited diagnostic capabilities.(44)
Central hospitals are the university hospitals that are found in
Hanoi and Ho Chi Minh City. Even though the central hospitals are the "best"
in terms of equipment and facilities, they still lack resources.(45)
In practice, understaffing and a lack of supplies limit the effectiveness
of healthcare at each level. In Vietnam, there are about five doctors for
every ten thousand citizens.(46) Patients at public hospitals, many of
whom are poor, share beds.(47) Hospitals are dirty and crowded, in part
because of the custom of family members staying with sick relatives.(48)
Because the Vietnamese government devotes only three percent of its revenues to healthcare annually, the health care system is considering privatization, cooperative health service plans, and international joint ventures.(49) Foreign investment in healthcare ventures is therefore increasing.
Whether this will lead to tangible improvements for the Vietnamese
is uncertain. Some of the foreign-supported hospitals cater to business
expatriates.(50)
2. Telemedicine Potential
Before telemedicine services could be supplied to Vietnam, the telecommunications
system would have to be upgraded. Most of the telecommunications equipment
currently in use in Vietnam is from the former Soviet Union, and is outdated.
Major system components are operated manually via a mix of "PLC"
and radio links.
The public telecommunications system is virtually non-existent in remote areas.(51) Mobile radio units are available in some regions.(52) Telephone service is also extremely limited: the government is trying to increase telephone service to 3 telephones/100 people by the year 2000.(53) Fiber optic links between the major population centers may also be on the horizon.(54) Recent dispatches also indicate that a limited, governmentally controlled internet system is in operation.(55)
Further development of the telecommunications infrastructure, through joint projects between the Vietnamese government and various telecommunications firms, is currently underway.(56) III. Telemedicine Policy Considerations and Implementation Obstacles: Findings of the 1996 Joint Working Group on Telemedicine
About a year after her Internet diagnosis, Zhu Ling's CT scans and
MRIs showed some brain atrophy.
Yet, despite the promise it demonstrated in Zhu Ling's and other cases,
telemedicine faces a number of implementation barriers within and outside
the United States. For many doctors and healthcare consumers, technologically
advanced telemedicine delivery systems might present the problem of "innovation
overload." This occurs when there is more technology available than
what people actually need or want.(57)
This may be particularly true for Vietnam. The country has a strong
folk medicine tradition and many individuals distrust western medical practices.(58)
Tailoring telemedicine technology to meet the needs of cyberspace healthcare
consumers with diverse cultural ties continues to be an under-addressed
policy issue.
Medical practice also seems to be losing its human element, according to
some critics. Adopting telemedicine to replace traditional patient care
models may lead to patient dehumanization and depersonalization. Telemedicine
might reach underserved populations, but at the price of removing doctors
from at-risk communities and rural areas.
Other problems exist. Empirical data demonstrating telemedicine's economic
practicality and cost effectiveness is lacking.(59)
Moreover, critics argue that the United States, in particular, has no clear
public policy regarding telemedicine. According to Annenberg Fellow Craig
LaMay, "telemedicine is an idea spread thin at the federal level,
with little coordination between the stakeholders."(60) To that end,
Congress and the President may endorse the concept of telemedicine, but
they have established contradictory track records with respect to ensuring
its implementation.(61)
To address these and other issues, and as part of the Telecommunications
Reform Act of 1996, Congress charged the Joint Working Group on Telemedicine
(JWGT) to submit a report on the advanced use of telecommunications services
for healthcare.
A. Inadequate Infrastructure and Systems Compatibility
The telecommunications infrastructure inadequately provides cost-
effective telemedicine services. The greater bandwidth needs of advanced
telemedicine systems come with higher costs. Disparate levels of telecommunications
capabilities across the country hamper uniform implementation efforts.
As a result, the FCC Advisory Committee has recommended that "adequate
telecommunications infrastructure be made available to rural health care
providers." According to the FCC, basic telecommunications services
should include internet access, and increased bandwidth capabilities.(62)
It seems necessary to note that presently, this basic platform of
services grossly outdistances Vietnamese telecommunications capabilities.
Systems compatibility is another obstacle to widescale adoption of telemedicine.
A range of telecommunications options are available to communities -- from
conventional telephone lines to very small aperture (VSAT) technology,
fiber optics, and cellular communications systems. Coupled with an absence
of consensus on what communications platforms to adopt, the potential for
systems incompatibility raises a significant implementation barrier.(63)
Compatibility does not seem to be an operative problem in Vietnam, where
the telecommunications system could be classified as skeletal.
B. Missing Technical and Practice Standards
The development of standards for telemedicine practice lags significantly
behind advances in technology. Technical standards, as well as clinical
practice and educational guidelines for telemedicine practice, are virtually
non-existent. The lack of standards presents serious questions about telemedicine
safety and efficacy.
The American Medical Association (AMA)
C. Patient Privacy and Security
The use of telemedicine for treating socially stigmatized conditions
such as mental illness, substance abuse, and HIV raises the issue of maintaining
patient privacy when telemedical record documentation is involved. According
to the JWGT, "unlike standard medical documentation, in which the
health professional has discretion to selectively record his or her findings,
most interactive telemedicine consultations are recorded in toto."(64)
Thus, "physicians might have less discretion to remove information
that they might otherwise not record."(65)
Telemedicine consultations are usually recorded in their entirety. Additional
support personnel besides administering physicians are needed to operate
telemedicine system components, and to manage the information generated
by telemedicine practice. The JWGT Report indicated that the problems associated
with a lack of uniform state-level confidentiality and privacy legislation
in terms of health information transfer could be exacerbated by telemedicine.(66)
D. Payment for Telemedicine Services
Third party payers have been reluctant to pay for telemedicine services,
while federally funded programs like Medicare and Medicaid provide only
limited coverage. Few private payers cover telemedicine consultation services,
while most cover teleradiology and related services, according to the JWGT.(67)
Private payers are reticent to pay for telemedicine services because they
are unsure that telemedicine-related benefits to patients are worth the
additional costs.
Whether Medicaid and Medicare should cover telemedicine services also remains
largely unresolved.(68) Medicaid coverage is available, mostly through
the Medicaid programs of individual states.(69) Medicare, on the other
hand, covers only those health care procedures and services that are deemed
to be "reasonable and necessary for the diagnosis and treatment of
illness or injury or to improve the functioning of a malformed body member."(70)
Coverage for experimental or investigational protocols is unavailable through
Medicare. Telemedicine, regardless of its promise, is still considered
an experimental form of treatment.(71) Payment for services from the Medicare
Trust Fund are available for teleradiology and long-distance EEG and ECG
services.(72) Telemedicine services requiring face-to-face contact between
physicians and patients continues to lack coverage.
The practice of medical licensing was originally carried to this
country from England.(73) In 17th and 18th century America, licensure by
professional societies became prevalent.(74) Holding a license, however,
was of little practical value. Moreover, licensing ineffectively regulated
the conduct of individual physicians.(75)
As state medical societies were organized and gained social prominence
in the 19th century, state legislatures began to extend licensing authority
to state medical associations.(76) These provisions were also typically
ineffective.(77) As Paul Starr writes in The Social Transformation of American
Medicine "...no standard was set for education or achievement, no
power was given to rescind a license...no provision was made for enforcement
...and no serious penalties were imposed for violating the laws."(78)
Licensing boards short on revenue would not send away applicants.(79)
According to Starr, medical licensing persisted, despite a tradition rooted
at first in ineffectiveness, because it was in the best interests, financially,
of both medical schools and physicians.(80)
States now have Medical Practice Acts that define the process and
procedures by which medical practice is regulated. Individuals who practice
medicine without a license can be penalized either criminally or civilly
under the State Acts.(81)
The Medical Practice Acts are intended to protect the public by discouraging
medical "hucksters" and "snake oil salesmen." Today,
telemedicine Web sites are becoming the new "frontier" for some
of these medical "kooks and quacks." According to Fleming Aase,
a marketing manager for the Mayo Clinic's Health Oasis site, "there's
so much medical information out there, and much of it is unreliable and
inaccurate."(82)
The problem was the topic of a recent Journal of the American Medical Association (JAMA) editorial. JAMA editor Dr. George Lundberg emphasized that "the same set of quality moorings that help users of medical information navigate in print should apply in the digital world...The time has come to discuss vigorously how such a set of basic quality standards can be developed in an electronic context."(83)
Thus, the licensing of telemedicine providers presents a number of
complicated questions for regulators. If physicians consult directly with
patients via telemedicine sites or chatrooms, have they established physician-patient
relationships sufficiently strong to trigger the application of practice
standards? What if they review patient diagnostic data or digitalized images?
Or merely are consulting with other physicians about patient care?
These issues probe the overlapping powers of the federal government and
the states to regulate medical practice. Telemedicine services may be considered
market goods that can be bought and sold across state lines. As a result,
telemedicine providers involved in interstate commerce might find themselves
within the regulatory power of the federal government.
At the same time, because states have the power to protect the health
and welfare of their citizens, they have the power to regulate medical
and thus telemedical practice. The next Part considers the problems raised
by telemedicine licensing in intrastate, interstate, and international
contexts.
A. State Authority to Regulate Intrastate Practice of Telemedicine
Article X of the Constitution grants states the authority to regulate
activities that affect the health, safety, and welfare of their citizens.
The Supreme Court addressed the validity of state-mandated medical
licensure in Dent v. West Virginia.
1. The Physician-Patient Relationship
All states require physicians to obtain licenses before they practice medicine.
Physicians "practice" medicine by establishing professional relationships with patients. The practice of medicine has been defined statutorily as treating, diagnosing, or operating on the sick and afflicted, or as "prescribing for any ailment blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person."(87)
The existence of a physician-patient relationship determines whether a person receiving medical treatment can bring suit against a physician for malpractice.(88) In effect, the patient has contracted with the physician to provide health care services.(89)
The physician in turn owes the patient a duty of "due care."(90)
This duty requires that the physician diagnose or treat the patient with
the skill that a patient would expect from a physician. If there is no
relationship there is no duty of due care.(91) The traditional "duty"
standard, based on the expertise of a proximate geographic community of
professionals, is more complicated in the "non-geographic" telecommunications
domain.
2. The Telephone Consultation Analogy
Telephone consultation -- the technological precursor to advanced forms of telemedicine -- complicates matters. Are physician- patient relationships formed via telephone consultations?
In many states, licensure is not required when physicians are found
to be functioning as consultants rather than as practicing physicians.(92)
According to Granade and Sanders, pivotal issues associated with telephone
consultation cases involve a) whether the physician and patient actually
saw each other; b) whether the physician ever examined the patient; c)
whether the patients records were ever viewed by the consultant; d) whether
the consulting physician knew the patient's name; and e) whether the consultation
was gratuitous or for a fee.(93)
In the simplest case, involving a consultant who never personally examined
or spoke to a patient, case law has generally held that physician-patient
contact is not sufficient to form a relationship.(94) In effect, the consulting
physician is only in contact with the administering physician, and the
administering physician serves as a proximate liability shield.(95)
Granade and Sanders point to a contrary line of cases holding that a physician-patient relationship was established, although the consulting doctor never actually met the patient.(96) In Davis v. Weiskopf, the Illinois Appellate Court found that a consulting radiologist had established a relationship with a patient by examining the patient's x-rays.(97)
In a similar case, the New York Appellate Division determined that a physician-patient relationship existed based on a phone call to schedule an appointment.(98) In this case, the court concluded that offering medical advice, even if indeterminate in nature, could be the basis of finding a relationship and establishing malpractice liability. These decisions seem to suggest that future courts may find the existence of a physician patient relationship based on internet or other telemedical-based communication modes.
3. Consultations in Cyberspace
Cyberspace introduces another degree of complexity to the situation: Doctors
involved in telemedicine practice will be able evaluate an array of diagnostic
information pertaining to patients. In some instances, they will be able
to monitor medical procedures in real time, and in the future, may participate
in surgery from remote locations using robotics.
The problem raised by telemedicine is that the division between healthcare
delivery and consultation becomes fuzzy: the range of diagnostic information
that can be transmitted using current telemedicine technology can give
consulting physicians an extremely intimate view of patient health.
Here, the telephone analogy doesn't extend far enough. As Granade and Sanders
point out, it provides mixed guidance.(99) Telemedicine is necessitating
re-analysis of the legal relationships that define medical practice. Doctors
who directly provide care to patients from remote locations, involving
either medical advice or diagnostic analysis, may be practicing medicine
for the purpose of the medical practice acts. If doctors see, hear, or
otherwise learn in a professional capacity about the physiological state
of patients through telemedicine technology, they may be required to obtain
licenses from the home states of patients.
B. Federal Authority to Regulate Interstate Practice
of Telemedicine
The power of states to regulate telemedical practice through medical licensure protocols may be limited by Federal powers under the Supremacy, Commerce, or Privileges and Immunities Clauses. These constitutional mechanisms for curbing state rights can be invoked when economic protectionism, interference with interstate commerce, or compelling national legislative interests are involved. The next section examines these federal powers.
1. Supremacy Clause Implications
The Supremacy Clause mandates that state regulations that are designed
to protect vital state interests may have to give way to federal legislation.(100)
Although the presumption against state preemption is strong, the Supremacy
Clause of the Constitution allows the federal government to override the
states in certain instances.
According to the Supreme Court in Cippolone v. Liggett Group,
The courts have thus supported preemption when "compliance with both
federal and state regulations is a physical impossibility, or when the
purposes behind the regulations are inconsistent." (103) In the second
situation, courts will imply preemption when the interpretation of the
federal regulation is "so pervasive as to make reasonable the inference
that Congress left no room for the states to supplement it."(104)
In Jones v. Rath,
The Federal Government has the authority to establish national eligibility
standards, for instance in programs such as Medicare and Medicaid.(106)
In addition, Congress has enacted other national health and safety laws,
including the Occupational Safety and Health Act(107), the Mammography
Quality Standards Act of 1992 (108), and the Clinical Laboratory Improvement
Amendment of 1988.(109)
More recently, the federal government has enacted examination and operating
guidelines for commercial motor vehicle operators.(110) States may still
issue driver's licenses, but only if individual drivers meet the minimum
requirements outlined by the federal statute.(111) The federal driver's
license law also creates a federal clearinghouse and depository of information
about drivers.(112) In that respect, it is similar to the Health Care Quality
Improvement Act (HCQIA) of 1988.(113) The HCQIA tracks, on a national basis,
medical malpractice payments, state medical board disciplinary actions,
and adverse professional review actions made by health care entities. The
Act does not, however address the issue of medical licensure.(114)
Congress may have the right under the Supremacy Clause to regulate
licensure for telemedicine practice.(115) At some future time, Congress
may statutorily embrace the notion of national healthcare standardization.
By operation of the Supremacy Clause, state medical practice acts could
be preempted by federal legislation.
2. Commerce Clause Implications
Interstate telemedicine physicians could employ Commerce Clause arguments
to contest restrictive state licensure schemes. When interstate trade is
involved, the Commerce Clause limits the abilities of states to erect barriers
to trade.(116) The federal government has the power to regulate healthcare-related
policies under the Commerce Clause. The practice of healthcare has been
held to be interstate trade.(117) The Court held in Arizona v. Maricopa
County Medical Society
The Commerce Clause prohibits state regulatory schemes that restrict interstate
commerce and that place out-of state entities at a competitive disadvantage.(119)
Congress can, under the Commerce Clause, invalidate state laws that effectively
advocate economic protectionism or favoritism.(120) In Baldwin v. G.A.F.
Seelig,
The law in Seelig required milk dealers to pay a minimum price to milk producers.(122) The State refused to grant a permit to a Vermont dairy that offered a lower price than the New York dairies.(123) The Court ruled that minimum pricing was permissible but not as applied to out-of-state producers, and held that the law amounted to economic protectionism.(124) As applied to medical licensure laws affecting telemedicine practice, the Federal Government could conceivably reach the states through the operation of the Commerce Clause, if the laws impede interstate commerce, or otherwise are based on economic protectionism.(125)
3. Privileges and Immunities Clause Considerations
The Federal Government could also limit the abilities of states to regulate
telemedical practice through the Privileges and Immunities Clause. The
Privileges and Immunities Clause seeks to "place the citizens of each
State upon the same footing with other citizens, so far as the advantages
resulting from citizenship are concerned."(126)
The Clause restricts state regulatory mechanisms that treat state residents
differently than non-residents.(127) Vyborny notes that professional pursuits
such as medical practice -- a "common calling" -- fall within
the protections of the Privileges and Immunities Clause. Laws attempting
to deny professional licensure to non-residents have been held unconstitutional.(128)
In United Building & Construction Trades v. Mayor of Camden,
C. Does Congress have the Power to Regulate Telemedicine?
Congress could legitimately decide to regulate telemedicine. Doing so through
the operation of the Supremacy Clause and telecommunications laws, could
prove problematic. The Telecommunications Act of 1996 "seeks to promote
competition, encourage raid deployment of new technology, and reduce regulation."(130)
As Vyborny points out, the Act is designed to accomplish these and
other goals by "requiring local telecommunications exchanges to make
infrastructure, technology, information, facilities, and functions available
to other carriers in order to expand telecommunications and information
services to local populations."(131) Thus, it functions primarily
as economic legislation. Courts have held that, as economic legislation,
earlier permutations of the Telecommunications Act were not intended by
Congress to be a complete regulation of an industry for health and safety
of the general public.(132)
The Commerce Clause and Privileges and Immunities Clause, however, provide
Congress with effective mechanisms for restricting state legislation. States
will have to navigate around these constructs in order to retain control
over state licensure protocols. The author identifies four tests that state
telemedical licensure laws must pass in order to be held valid in light
of these federal considerations.(133)
Overt Economic Protectionism: Telemedicine promises to make out
of state medical care more possible. Any state regulations that intentionally
or inadvertently close state borders to economic competition in the realm
of health care will most likely be characterized as economic protectionism
and will be struck down as invalid.
Reciprocal Agreements: Reciprocal Practice Agreements that impose
mandatory impositions on state citizens doing business in other jurisdictions
may fail as impermissible.
Least Restrictive Means Test: This test is a judicial invention
that requires states to employ, wherever possible, non discriminatory means
to protecting legitimate state interests. For example, prohibiting non-resident
practitioners from in-state practice because of blanket, unsubstantiated
assumptions about their "evil" or incompetence is impermissible.
Evenhandedness: This principle would have to find that if a state
found that telemedicine constituted a health menace, it would have to prohibit
telemedicine practice by both in-state and out-of-state practitioners.
The state would have to eliminate the health menace entirely from within
its borders. If the state imposes restrictions on the practice of telemedicine,
it must do so with even-handedness, so that all practitioners are affected
equally.
D. JWGT Proposals for Overcoming Licensure and
Obstacles
The JWGT identified several alternatives to conventional licensing
strategies in its February Report. Some of the alternatives described below
were advocated by professional medical organizations.
Consulting Exceptions. As alluded to earlier, most states exempt
physician consultations from their licensure requirements. In cases involving
telephone consultations between physicians, in which the consultant does
not actually examine or confer with the patient, a physician-patient tie
is not sufficiently established to form an actionable relationship. This
poses some problems in the context of telemedicine. Most consultation exceptions
were enacted prior to the advent of advanced telemedicine technologies.
State legislatures would have to clarify their consultation exceptions
to meet telemedicine practice.
Endorsement. Most state boards grant licenses to health professionals
that are licensed in other states with equivalent standards. Licensure
requirements between states will have to be harmonized in order for endorsement
to work on a widescale. Although this plan edges near the notion of nationally-regulated
healthcare, but under an endorsement plan, individual states would still
be responsible for enforcing standards.
Mutual Recognition. Under a mutual recognition plan, state licensing
authorities would voluntarily enter into agreements to accept the licensing
policies and practices of other states. Standards, enforcement, and administrative
protocols would have to negotiated before a mutual recognition system could
be implemented. The JWGT suggests that achieving consensus may be difficult
between the states in this situation, because it potentially involves a
sacrifice of individual state power.
Reciprocity. The situation where two states agree that citizens
should enjoy similar reciprocal privileges is another option for managing
the licensure problem. Reciprocity would not require a harmonization of
standards, and would still leave health professionals subject to diverse
requirements.
Registration. Under a registration system, healthcare professionals
who wanted to practice medicine outside of their parent states would register
with the states in question and thus submit to the legal authority of those
states. The JWGT indicates that registration presents a variety of problems.
For instance, mechanisms for disciplining out-of-state professionals will
have to be implemented under the registration system, along with quality
control standards.
Limited, National, and Federal Licensure. Under the limited licensure
system, physicians would be required to obtain licenses from each of the
states in which they plan to practice. This is the system favored by the
American Medical Association and other professional organizations. A national
licensure system would be based on the issuance of a license based on a
national set of practice criteria. Control of a national licensing system
could be vested in an organization like the AMA.
The JWGT points out that under this plan, states could face a potential
loss in revenue. Under a federal licensure system, health professionals
would obtain one practice license from the federal government based upon
federal standards. This plan would be administered by a federal agency.
This raises funding and other problems.
E. Summary
The problems raised by licensing with respect to telemedical practice
may be the crucible for the healthcare debate in this country. It may be
that the need for a national healthcare policy is not out of the question,
as healthcare delivery systems converge to form national networks, and
insurance dollars for healthcare coverage continue to drop.
A federal or national licensure system, along with a federal or national
healthcare delivery system, would greatly improve the standard and availability
of healthcare to the majority of Americans. National licensure, at the
least, would harmonize standards and simplify administration of the licensure
system on the web and in general. In the context of telemedicine, a national
licensure system may expedite the process of systems implementation.(134)
The AMA, however, does not support a national or federal licensure
system. Instead, it favors a multiple licensing approach.
JAMA editor Dr. George Lundberg calls for an "AMA Seal of Approval"
for telemedicine websites. The AMA would evaluate sites in several criteria
including: clarity of author source identification and affiliation; verifiability
of the information presented and its currentness.(135)
World licensure, through an organization like the World Health Organization,
could help to standardize international telemedical practice. Like an international
driving license, an international telemedical practice license would authorize
individual physicians to practice on the internet, and via other modes
of telemedical communication. The mechanism by which malpracticing physicians
or unlicensed physicians could be censured under a world licensing protocol
seems uncertain.
One option is to rely on the self-regulatory character of health organizations. Physicians who practice irresponsibly in cyberspace could be reported to national professional organizations and censured in their parent countries. The self-regulatory nature of organizations, mentioned at the beginning of this report, would extend to cyberspace through human, not virtual, actions legal.
Malysia's attempts to regulate telemedicine practice presents another alternative. The Malaysian Parliament passed the Telemedicine Act of 1997 to regulate telemedicine practitioners. An early verison of the law required fully registered Malaysian practitioners to inform patients of their rights, and to obtain their written consent prior to the administration of telemedicine services. Violators would face potential fines and imprisonment. Practitioners registered outside of Malaysia would be required to obtain permission of the Director General of Health, and to be supervised by a registered Malaysian physician.(136)
"The bamboo curtain around Vietnam has opened."(137)
Vietnam represents a new economic frontier for corporations interested in either selling their goods to a large consumer base, or in operating overseas production plants.(138)
The doi moi economic reforms of 1986 marked the beginning of the
process of economic growth for Vietnam.
A. Background
Vietnam is an S-shaped coastal country of mountains and river deltas abutting the South China Sea. China lies to the north, while Laos and Cambodia lie to the west. The northern highlands, or Hoang Lien Son, form a natural barrier with the People's Republic of China. The Red River Delta and central lowlands lie to the south of this mountainous region, along with the central lowland strip and the agriculturally productive Mekong Delta region. The country stretches 1800 km from north to south, and has over 3000 km of coastline.
Average rainfall and temperatures range from 1680 mm/23.4º C
in the north, to 1980 mm/26.9º C in the south. Because of natural
topographical barriers, travel between regions of what is now Vietnam was
historically difficult. Thus, the country remains both geographically and
culturally diverse.
Over 50 ethnic groups currently inhabit Vietnam, including the Vietnamese
themselves. The official language is Vietnamese, yet French, English, various
Chinese dialects are also spoken in some areas, as well as Russian, Khmer,
and tribal languages. Dominant religions include Buddhism, Confucianism,
Taoism, Christianity, indigenous beliefs, and animism.
Health and social indicators are available for Vietnam from the World
Bank.
Life expectancy at birth for the Vietnamese people was estimated
by the World Bank to be 63 years. Fifty percent of the population has access
to clean drinking water. The average caloric intake as percent of requirements
is 102%. Over 3.8 million children under the age of 5 are malnourished.
Fifty-three percent of the women of child-bearing age use a form of modern
contraception.
Many corporations are courting the Vietnamese government, hoping
to start joint ventures in a variety of industries.(139) These industries
are generally required to bring operational infrastructures with them.
B. The Vietmed Proposal
In practical terms, Vietnam lacks the money, the infrastructure,
and the human resources to build a viable national health service provider.
With external support from Global Telecom and third party funders, it will
be possible for Vietnam to offer its citizens improved health, longer life
expectancies, and a better quality of life. Global Telecom should see this
project as an opportunity to invest in its own future as well as that of
the Vietnam.
Designing a feasible telemedicine health service option for a poor country
like Vietnam that is geographically and culturally diverse, as well as
politically rigid presents a number of problems.
Although Vietnam is perceived as a booming economic frontier by corporations,
it is troubling that access to clean water for all citizens is limited.
It is also troubling that a major cause of hospitalization and death is
dysentery, and that AIDS and HIV occurrence is becoming more frequent.
In addition, the opening of the bamboo curtain has introduced other diseases
to Vietnam, particularly AIDS. Reported cases of AIDS are on the increase
in urban populations. One "condom cafe" has opened in Hanoi to
distribute free condoms and offer advice.(140) This is, however, not enough.
While economic growth may improve Vietnam's prospects, improvements in
public health seem to be urgently needed.
Global Telecom should realize that many health problems face the rural
Vietnamese population. Because the country is geographically diverse, travel
between regions is tenuous. In addition, access to telephone services is
limited in Vietnam, especially for rural populations.(141) Some telecommunications
companies, including Telstra, Hughes, and Mitsui have contracted to develop
both conventional and satellite-based telephone systems throughout the
country.(142)
Global Telecom also recognizes that the urban population faces its own series of pressing health dilemmas. Firstly, medical licensure and regulation of medical practitioners is uneven in Vietnam. Medical fraud and hucksterism are not infrequent.(143)
Quality of medical care also is an issue that requires immediate attention. As indicated earlier, being a doctor can mean a number of things in the country. It can mean that physicians attended bona fide medical schools in France or elsewhere, that they attended medical schools in Vietnam (and thus are licensed to practice in specified regions, or that they earned field commendations during the war.
C. Implementation Plan
The health service system in Vietnam follows a multi-tiered model
as indicated earlier. The system is comprised of centralized national hospitals
in Hanoi and Ho Chi Minh City, and then progressively smaller facilities
at the provincial, district, and village level.
This tiered approach could support the implementation of a rudimentary
variant of the Mayo Clinic's "Centers of Excellence" approach.
Thus, the national hospitals would be equipped with comprehensive
telemedicine systems, designed for both healthcare delivery and education.
Provincial and district health centers would be provided with, at minimum,
telephone communications technology, in addition to their radio capabilities.
Communal centers would be provided with cellular phones.
Global Telecom should offer telemedicine services to the Vietnamese government
as part of a comprehensive telecommunications package. The idea is that
contributing to healthcare improvement would be less expensive for Global
Telecom, if it is involved in other profitable telecommunications ventures.
If Global Telecom either owns or jointly manages telecommunications
equipment in Vietnam, providing either bandwidth or access time will not
be prohibitively expensive. Global Telecom will try to defray the costs
of providing the telemedical hardware" by seeking grant support from
not- for-profit agencies like WHO and governmental agencies like US- AID.
Global Telecom will engage cooperating agencies to provide medical education
and diagnostic support. Global Telecom will seek NASA participation in
the venture, to defray its long and short term VSAT satellite costs. Global
Telecom will also negotiate with Academic Medical Centers to provide clinical
medical support.
Global Telecom will serve as an agent to for-profit Health maintenance
Organizations and Diagnostic firms (for instance, for teleradiology services).
It will negotiate between these groups and the Vietnamese government to
provide multiyear contracts for consultation and education services. Global
Telecom will choose these firms based on a bidding scheme: the highest
bidders will have the opportunity to contract with Vietnam. Global Telecom
will get a share of any profits accrued from these ventures. Global Telecom
will, however, preemptively and contractually disoblige itself from any
liability incurred by subcontractors.
Global Telecom would be cast in the light of a "good world citizen:"
profit seeking, acting ultimately out of enlightened self-interest, but
nonetheless altruistic. Global Telecom will use its telemedicine project
in its advertising campaigns. The company believes that it will be able
to implement a mutually beneficial telemedical and telecommunications system,
profitably and effectively.
D. Vietmed Implementation Obstacles
Global Telecom recognizes the array of infrastructural barriers
to effective telemedical healthcare delivery in Vietnam. One relates to
inadequate telecommunications infrastructure. Another, to the Vietnamese
government's concern about controlling electronic networking and communication.(144).
Antother relates to practice standards. Toward that end, Global Telecom will advocate minimum professional standards for American doctors involved in telehealth pursuits in Vietnam. From a practical level, Global Telecom would find it easier to allow physicians access to Vietmed based on a national or international licensure scheme, although this is currently unfeasible. As a result, Global Telemed would rely on healthcare provider contractors to regulate their staffs.
Zhu Ling's doctors in China advocated a "global or regional
telemedicine system...[which could be] widely accessible and integrate[d]
with existing clinical practice. They continued: "We are working towards
am architecture that uses public and ubiquitous networks and tools to address
the issues of communications bandwidth, wide availability, image quality,
and security."
This paper examined the problems associated with telemedicine implementation by examining the American telemedicine experience, and then proposing a plan to provide telemedicine services to Vietnam. It identified medical licensure as one of the problems hampering telemedicine adoption domestically, and suggested that a national or federal licensure system would alleviate some problems, but may bring the United States closer to a nationalized system of healthcare.
In the international context, it suggested that an international
telemedicine licensing system might help to contain fraud and hucksterism.
In the absence of uniform licensing protocols, it indicated that self-regulatory
bodies such as professional health societies might help to curb telemedicine,
or cybermedicine, malpractice. In the context of Vietnam, it identified
Global Telecom's "win-win" strategy for providing Vietnam with
improved health information options, while at the same time, trying to
achieve a monopoly on the Vietnamese telecommunications infrastructure.
Zhu Ling's doctors believed that her story was far from over. For them,
there was little question that the case had broken new ground in telemedicine.
"By branching off into such uncharted areas," they wrote, "the
case has probably raised more questions than answers. But those of us who
have worked for so many years in China and other developing countries know
that the world itself [has] changed."
1.David R. Johnson & David Post, Law and Borders -- The Rise of Law
in Cyberspace, 48 Stan L. Rev. 1367 (1996), (arguing that Cyberspace needs
and can create its own law and legal institutions).
Posted at http://www.cli.org/X0025_LBFIN.html
2.Dan L. Burk, Jurisdiction in a Law Without Borders, 1 Va. J. L. & Tech. 3 (1997) (describing the jurisdictional issues raised by the non-geographical nature of cyberspace).
3. Henry H. Peritt, Jurisdiction in Cyberspace: The Role of Intermediaries, (exploring the jurisdiction of conventional courts, and considering the degree to which they have jurisdiction to adjudicate civil disputes and prosecute crimes arising in cyberspace).
Posted at http://www.law.vill.edu/harvard/article/harv96k.htm
4. Tamir Maltz, Customary Law and Power in Internet Communities,
Posted at http://www.kentlaw.edu/cgi-bin/ldn_news/ X+law.listserv.studentlawtech+1709+1710
5.Juliet M. Oberding & Terje Noderhaug, A Separate Jurisdiction for Cyberspace? (Considering whether the technical characteristics of the Internet should create a separate legal jurisdiction)
Posted at http://www.usc.edu/dept/annenberg/vol2/issue1/ juris.html
6.Peter Ludlow, ed., High Noon on the Electronic Frontier (1996)
7. Jonathan Roesnoer, Cyberlaw: The Law of the Internet (1997)
8.See Phyllis F. Granade & Jay H. Sander, Implementing Telemedicine Nationwide: Analyzing the Legal Issues, 63 Def. Couns. J. 67 (1996) ("telemedicine is the use of telecommunications to provide health care services to patients who are distant from a patient or other health care provider"); Kathryn M. Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996) (describing generally that telemedicine is "medical diagnosis and treatment via telecommunications," and providing several more explicit definitions); Stacey Swatek Huie, Facilitating Telemedicine: Reconciling National Access with State Licensing Laws, 18 Hastings Comm/Ent L.J. 377 (1996) (telemedicine is the "use of telecommunications for diagnosis and patient care"); Leslie G. Berkowitz, Is There a Doctor in the House? The Rise of Telemedicine, Colorado Lawyer, Jun 25, 1996, at 19 (defining telemedicine as "remote electronic clinical consultation"). The AMA notes that "telemedicine generally refers to the provision of health care consultation and education using telecommunications networks to communicate information." See also Douglas D. Bradham, Sheron Morgan & Margaret E. Dailey, The Information Superhighway and Telemedicine: Applications, Status, and Issues, 30 Wake Forest L/ Rev. 145 (1995) (defining telemedicine in terms of telecommunications methods of delivery).
9. See Granade & Sanders at id.
10. See Daniel McCarthy, The Virtual Health Economy: Telemedicine
11. Id.
12. Id.
13. Id.
14.See McCarthy, supra note 10, at 113-155 (defining technological complexity of telemedicine systems).
15. Id.
16. Id.
17. Id.
18.Telemedicine: Federal Strategy is Needed to Guide Investments, Gen. Acct. Off. Rep. & Testimony (Feb. 1, 1997).
19.See James Romensko, Cure for What Ails You May Be on the Net, Seattle Times, 1997 WL 3229482 (Apr. 20, 1997) (describing health oasis site).
20. See GAO Report, supra note **.
21. VSATs Have a Long Way to Go Before Reaching Potential,
Satellite News, Feb. 24, 1997 (discusses VSAT service providers, including
GE, Hughes, Orion, and Scientific Atlanta and a potential new application--telemedicine);
Hughes/ PanAmSat, Loral AT&T Plan Separate Ka Band System,
22.See Is the Telemdicine Market Maturing? Industries in Transition, 1997
WL 928539 (June 1, 1997)m (discussing telemedicine service provider results).
23. Military Interest Could Impact Commercial Satellite Products Satellite
News, May 20, 1996, 1996 (Hughes has demonstrated novel ways in which the
military hopes to apply new telecommunications technology, including Lapsat,
a briefcase sized unit that can receive and transmit digital services).
24. See Lockheed Martin's Astrolink: Global Capabilities for the Next Century, supra note 20.
25. http://www.orbcomm.net/
26. Id.
27. Selling VSATs in the Wilderness, Satellite Comm. 18, Dec. 1, 1995 (discussing need to reach rural populations using telecommunications). More than 2 billion people live in rural areas where telephone service is essentially non-existent LEOs are part of the proposed missing link, with potential applications in telemedicine. Satellite systems easier to implement than installing a cable or wire system. Also, traditional physical connections are cost-effective for short distance linkages, but become expensive when compared to satellite links in the context of long distances. Gains from the linkages to rural areas may be hard to quantify. But the benefits, socially, are obvious. How to defray costs? An Inmarsat representative suggested that charitable institutions are a source of support. VSATs are the engine for the telemedicine business, one potential benefit for rural populations.
27.Export Controls -- Sale of Telecommunications Equipment to China, GAO Report to the Chairman, Committee on National Security, House of Representatives, 1996 WL 680990 (F.D.C.H.).
28. Id.
29. Id.
30. Id.
31. Export Controls -- Sale of Telecommunications Equipment to China, GAO Report to the Chairman, Committee on National Security, House of Representatives, 1996 WL 680990 (F.D.C.H.).
32. Id.
33. Id.
34.See For Malaysia Super Corridor Projects to Cost US $640 Million, Asia Pulse, 1997 WL 11801797.
35. See Telemedicine Malaysias Rural Population, Asia Pulse, 1997 WL 10501213 (Apr. 9, 1997).
36.Malaysia PM Launches 15 Pilot Multimedia Projects, Asia Pulse, 1997 WL 11801766 (Jul. 28, 1997).
37.Austrailia Keen to Cooperate with Malaysia on Telemedicine, Asia Pulse, 1997 WL 11803637 (Aug. 6, 1997).
38.For a somewhat dated look at the health care system in Vietnam, see Joan McMichael, ed., Health Care for the People: Studies from Vietnam (1976) (noting that even though Vietnam has made tremendous strides in delivering health care to its population, much work remains); Nguyen thi Ngoc Anh & Tran tan Tram, Integration of Primary Health Care Concepts in a Children's Hospital with Limited Resources, 346 Lancet 421 (1995) (noting the devastation of the Vietnamese healthcare infrastructure after more than 30 years of war).
39. HIV Spreading Among Women and Children in Asia, Vaccine Weekly, Dec.
12, 1996 (in Vietnam, HIV rates among prostitutes climbed from 9% in 1992
to 38% in 1994)
40. Widening Gaps Between Rich and Poor Pose Global Health Threats, Vaccine Weekly, May 1, 1995 (listing high rates of malaria in Vietnam. Treatment costs range from $3.50 to $12.50.).
41. Nguyen thi Ngoc Anh & Tran tan Tram, Integration of Primary Health Care Concepts in a Children's Hospital with Limited Resources, 346 Lancet 421 (1995) (noting the devastation of the Vietnamese healthcare infrastructure after more than 30 years of war).
42. Id.
43. Id.
44. Id.
45. Nguyen thi Ngoc Anh & Tran tan Tram, Integration of Primary Health Care Concepts in a Children's Hospital with Limited Resources, 346 Lancet 421 (1995).
46.See A Hanoi Hospital Helped by Germany, Vietnam Investment Review, May 17, 1993 (noting that the Vietnam-Germany Friendship Hospital in Hanoi is under funded and understaffed); Le Minh Quan, Hospitals Dump Raw Waste, Vietnam Investment Review, April 29, 1996 (noting that a lack of funds was forcing hospitals to dispose of their waste directly into landfills or the sewage system); Ha Dong, Hospitals in Sick State: Vietnam Hospital System Needs More Funding, Vietnam Investment review, 10 (Mar. 16, 1997).
47. See Vietnam Hospitals in Sick State, at id.
48. Id.
49. See Decree Opens Medical Treatment Facilities to Foreign Investment, Vietnam Investment Review, 5 (Jan. 9, 1995).
50.See Ngoc Anh, New Evacuation Service, Vietnam Investment Review, 17 (Oct. 24, 1994) (offering expatirates a costly alternative to local medical service); Foreign Firm May Operate New Hospital, Vietnam Investment Review, Sept. 2, 1996 (reporting that plans for the construction of the American-owned and Swiss-backed International Hospital have been approved); Growth of Private Health Care in Vietnam, Marketletter, Oct. 14, 1996 (noting privatization trends in Vietnamese healthcare).
51. See http://www.swedpower.com
52. Id.
53. See Vietnam Reshuffles Top Telecom Jobs, Telenews Asia, Feb. 26, 1997 (Vietnam has been negotiating since 1994 to upgrade phone system in big cities. $1.4 billion. Deal involves Telstra, Cable & Wireless, Telecom, and NTT).
54. Fujitsu & VNPT to Manufacture Fiber Optic Components, Telenews Asia (Jan. 16, 1997) (Joint venture to manufacture fiber optic components).
Country Background--Vietnam, Telenews Asia (Nov. 13, 1996)
Pan Asia--Six Nation Loop in 1997, Telenews Asia (Aug. 22, 1996) (announcing
plans to construct a direct telecommunications links between Burma, Thailand,
Laos, Cambodia, Vietnam and Southwest China). The cost will be $200 million..
New Fiber Optic Cable, Telenews Asia (Aug. 8, 1996) (China, Vietnam, Laos, Thailand, Malaysia, and Singapore. 7,000 km long with 30,000 voice circuits. Cost $400 million.
55.For a description of Vietnam's Internet policy, see Francois Fortier,
Living with Cyberspace: Vietnam's Latest Dilemma, 15 Viet Nam Form 237
(1996).
56. Vietnam Begins Earth Station's Phaseout, Deploys SDH Backbone, Pac.
Rim Telecommunications (Oct 1, 1995) (noting that Telstra is installing
a new earth station in Sing Be Province. First stage--direct communication
links to Australia, Hong Kong, Japan, Thailand, and the United States.
Another deal between Northern Telecom, Ltd. to supply SDH for a 1800 mile
fiber optic network running between Hanoi and Ho Chi Minh City.
Post-Embargo Vietnam: Is the U.S. Too Late? Pac. Rim Telecommunications,
May 1, 1994 (listing Telecommunications companies in Vietnam as of 1994:
Motorola, Alcatel (cellular switching equipment), Ericcson (same), WTN,
AT&T, Telstra, Fujitsu.).
Vietnam: NZ Firm Sets Up J-V with Vietnamese Telecoms Ministry, Asia-Pacific Telecoms Analyst (Dec. 4, 1995) (discussing a 15 tear deal between Telenz Tracodi and Vietnam. Licensed as a Vietnamese company. Gets tax breaks, owns buildings, among other perks. Developing a network in Ho Chi Minh City and providing rural telephone services.).
About NTT, Telenews Asia (Jan. 16, 1997) (NTT to build a 240,000 line phone network in Hanoi over 5 years at cost of $180 million.).
57. Paul A. Hergig & Hugh Kramer, The Phenomenon of Innovation Overload,
14 Tech. In Soc. 441 (1992) (examining the concept of innovation overload).
58. See Healthcare for the People, supra note **.
59. See GAO Report supra note **.
60. Craig L. LaMay, Telemedicine and Competitive Change in Health Care, 22 Spine 88 (1997) (telemedicine is the "delivery of health care services to the underserved through communications technologies").
61. Id.
62. The Joint Working Group on Telemedicine, Telemedicine Report to Congress: Executive Summary, Jan. 31, 1997. Posted at http://www.ntia.doc.gov/reports/ telemed/index.htm
63. Id.
64. Id.
65. Id.
66. The Joint Working Group on Telemedicine, Telemedicine Report to
Congress: Executive Summary, Jan. 31, 1997. Posted at
http://www.ntia.doc.gov/reports/ telemed/index.htm
67. Id.
68. Id.
69. Id.
70. The Joint Working Group on Telemedicine, Telemedicine Report to
Congress: Executive Summary, Jan. 31, 1997. Posted at
http://www.ntia.doc.gov/reports/ telemed/index.htm
71. The Joint Working Group on Telemedicine, Telemedicine Report to
Congress: Executive Summary, Jan. 31, 1997. Posted at
http://www.ntia.doc.gov/reports/ telemed/index.htm
72. Id.
73. Paul Starr, The Social transformation of American Medicine (1982) (providing an historical analysis of the development of the American medical establishment).
74. Id.
75. Id.
76. Id.
77. Paul Starr, The Social transformation of American Medicine (1982) (providing an historical analysis of the development of the American medical establishment).
78. Id.
79. Id.
80. Id.
81. The Joint Working Group on Telemedicine, Telemedicine Report to
Congress: Executive Summary, Jan. 31, 1997. Posted at
http://www.ntia.doc.gov/reports/ telemed/index.htm
82. See Cure for What Ails You May Be On the Net, supra note **.
83. See id. (Quoting JAMA editorial).
84. 129 U.S. 114 (1889).
85.Id. The Court has addressed other issues associated with medical licensure.
For instance in Watson v.State of Maryland, 218 U.S. 173 (1910), the Court
examined Maryland's medical licensure statute in the context of equal protection.
Justice Day wrote for the majority: "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."). In
Collins v. The State of Texas, 223 U.S. 288 (1912), the Court determined
that osteopaths were covered by the Texas licensure law.
86. See Dent, supra.
87.See Stacey Swatek Huie, Facilitating Telemedicine: Reconciling National Access with State Licensing Laws, 18 Hastings Comm/Ent. L. J. 377 (1996) (quoting the California Medical Practice Act).
88. See Phyllis F. Granade & Jay H. Sander, Implementing Telemedicine Nationwide: Analyzing the Legal Issues, 63 Def. Couns. J. 67 (1996) (defining the contract inherent to the physician-patient relationship).
89. Id.
90. Id.
91. Grande & Sanders, supra note **.
92. Id.
93. Id.
94. Id.
95. Grande & Sanders, supra note **.
96. Id.
97. 439 N.E.2d 60 (Ill. App. 1992).
98. Bienz v. Suffolk County Hospital, 557 N.Y.S.2d (App.Div.2d Dep't 1990).
99. Grande & Sanders, supra note **.
100. The Supremacy Clause is expressed in Article VI, Clause 2 of the Constitution: "This Constitution and the laws of the United States which shall be made in pursuance therefor; and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary Notwithstanding." Note 50, supra, provides a web address for the Constitution.
101. 505 U.S. 504 (1992). Posted at http://www.fastsearch.com/law/
102. Id.
103.The Joint Working Group on Telemedicine Report too Congress. Posted at http://www.ntia.doc.gov/reports/telemed/index.htm
104. 430 U.S. 519 (1976). Posted at http://www.fastsearch.com/law/
105. The Joint Working Group on Telemedicine Report too Congress. Posted at http://www.ntia.doc.gov/reports/telemed/index.htm
106. Id.
107. Id.
108.See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
109. The Joint Working Group on Telemedicine Report too Congress. Posted at http://www.ntia.doc.gov/reports/telemed/index.htm
110. Id.
111. Id.
112. See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
113. The Joint Working Group on Telemedicine Report too Congress. Posted at http://www.ntia.doc.gov/reports/telemed/index.htm
114. Id. The Commerce Clause, Article 1, Section 10, Clause 3 of the Constitution provides in part that "No State shall. Without the Consent of Congress...enter into any Agreement or Compact with Another State..."
Maine v. Taylor, 477 U.S. 131 (1986) provides an outline of how the Court determines if a State has overstepped its role in regulating commerce. Statutes that burden interstate transactions incidentally violate the Commerce Clause only if the burdens they impose on interstate trade are "excessive in relation to putative local benefits," Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Statutes that affirmatively discriminate against interstate transactions are subject to more demanding scrutiny. Thus, once a state law is shown to discriminate against interstate commerce, "either on its face or in practical effect," the burden falls on the state to demonstrate both that the statute serves a legitimate local purpose, and that this purpose could not be served as well by available non-discriminatory means." Hughes v. Oklahoma, 441 U.S. 336 (1974)
115. 457 U.S. 332 (1982). Posted at http://www.fastsearch.com/law/
116. 294 U.S. 511 (1935). Posted at http://www.fastsearch.com/law/
117. See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
118. 294 U.S. 511 (1935). Posted at http://www.fastsearch.com/law/
119. Id.
120. Id.
121. Id.
122. See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
123. Id.
124. Id.
125. Id.
126. See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
127. Id.
128. 465 U.S. 208 (1984). Posted at http://www.fastsearch.com/law/
129. Id.
130. S. 652 104th Cong., 1st Sess. (1996) Telecommunications Reform Act (Section 709).
131. See Kathleen Vyborny, Legal and Political Issues Facing Telemedicine, 5 Annals Health L. 61 (1996).
132. Id.
133. Id.
134. Id.
135. See James Romensko, Cure for What Ails You May Be on the Net, Seattle Times, 1997 WL 3229482.
136.Proposed Bill Attempts to Regulate Telemedicine Practice, ComLine Daily News: Biotechnology & Medicine, 1997 WL 7749775.
137. Vietnam: The Satcom Protocol, Satellite Communications 18, (May 1, 1994) ("The bamboo curtain around Vietnam has opened." 70 million literate people. 70 million potential consumers. Covers economic analysis of satellite telecommunications business.)
138. See, e.g., Ciba Starts Two Factories in Vietnam, Pharmaceutical Business News (Jan. 31, 1996) (anounicng plans to start construction of a drug production facility).
139. See, e.g., Fujitsu & VNPT to Manufacture Fiber Optic Components, Telenews Asia, Jan. 16, 1997 (Joint venture to manufacture fiber optic components).
140. See Post-Embargo Vietnam: Is the U.S. Too Late? Pac. Rim Telecommunications, May 1, 1994 (listing Telecommunications companies in Vietnam as of 1994: Motorola, Alcatel (cellular switching equipment), Ericcson (same), WTN, AT&T, Telstra, Fujitsu).
141. Healthcare Delivery in Vietnam. Posted at http://
142. Mayo--Telemedicine Research. Posted at http://www.mayo.edu/ research/acts/acts.html
143.That is, the more remote the health delivery center, the less complicated the telemedicine technology.
144.See Francois Fortier, Living with Cyberspace: Vietnam's Latest Dilemma, 15 Viet Nam Forum, 237 (1996).
Cyberspace Law Institue
http://www.ll.georgetown.edu/lc/cli.html
Cyberspace Law Review Bibliography
http://www.dnai.com/~thiermn1/article_biblio.html
Journal of Computer Mediated Communication
http://www.usc.edu/dept/annenberg/vol2/issue1/cover2.html
Telemedicine Information
http://carenet.hscsyr.edu/info.html
Telemedicine Information Exchange
http://tie.telemed.org/TIEtexthome.html
High-Tech Medical Image Compression, Storage and Transmission Technologies
http://iridium.nttc.edu/telmed/icfact.html
Biomedical Sensors & Telemetry for Remote Monitoring of Patients
http://iridium.nttc.edu/telmed/bmfact.html
Virtual Reality & Visualization Tools for Medical Education &
Diagnosis
http://iridium.nttc.edu/telmed/vrfact.html
Georgetown University School of Medicine/Remote Radiology/ Interactive
Telemedicine
http://kronos.lerc.nasa.gov/acts/experimenters/georgetown university.html
healthfinder
http://www.healthfinder.gov
National Library of Medicine
http://www.nl,.nih.gov
Medscape
http://www.medscape.com
Centers for Disease Control
http:www.cdc.com
Multimedia Medical Reference Library
http://www.med-library.com
Maps of Viet Nam
http://coombs.anu.edu.au/~vern/ban_do/ban_do.html
Asia Pacific Business Center
http://192.239.70.245/apweb.nsf
Vietnam--Net Nam
http://www.ioit.ac.vn/vninfo/netnam.htm
Viet Nam Advice
http://coombs.anu.edu.au/WWWVLPages/VietPages/advice.html
gopher://cheops.anu.edu.au/7waissrc%3a/Coombs-db/ANU-Vietnam-IT L.src?health
More Maps of Viet Nam
http://coombs.anu.edu.au/~vern/ban_do/ban_do.html
Viet Nam Institute of Information Technology
http://www.ioit.ac.vn/
State Department Human Rights Report on Viet Nam
http://www.itu.int/hrc/vietnam.html
ITU
http://info.itu.ch/
WHO
http://info.itu.ch/
World Bank Group
http://www.worldbank.org/
Arent Fox Home Page
http://www.arentfox.com/telemedicine.html
NetNam--Viet Nam
http://www.hughespace.com/
Viet Nam Science Technology and Environment Page
http://coombs.anu.edu.au/~vern/avsl.html
WWW Virtual Library--Viet Nam
http://coombs.anu.edu.au/WWWVLPages/VietPages/WWWVL-Vietnam.html
Legal Data--Viet Nam
http://www.serve.net/vietnam/pages/viet1207.htm
Viet Nam Information
http://coombs.anu.edu.au/~vern/vninfo/vninfo.htm
Viet Nam Legal Documents
http://coombs.anu.edu.au/~vern/vninfo/vld.htm
Cassidy Viet Nam Law Links
http://users.deltanet.com/~wcassidy/vietnam/areport.html
Viet Links
http://vianetinc.com/viaport/law.shtml
Viet Nma Insight On Line
http://www.vinsight.org/insight.html
FinLaw--Asia and Vietnam
http://www.findlaw.com/search/countries/vn.html
USHR Viet Nam
http://law.house.gov/87.htm
The Constitution of Vietnam
http://www.fastsearch.com/law/
The Law Engine
http://www.fastsearch.com/law/
The Constitution of the United States of America
http://www.fastsearch.com/law/
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