1 MEASURING MALPRACTICE IN MODERN MOBILE MEDICINE Rishi M. Diwan * ABSTRACT Demand for greater use of mobile technology during patient treatment has markedly increased in the last decade. The unique advantages of smartphone technology have the potential to drastically alter the landscape of medical treatment. This Note discusses the numerous benefits of implementing mobile technology in healthcare settings. The author also explores the additional risks of liability that could arise from reliance on such technology. In light of these risks, the author concludes by addressing some safeguards that practitioners and hospitals may rely on to protect themselves from liability when utilizing mobile technology. CONTENTS Abstract Introduction I. Background I. Mobile Technology s Effect on Liability II. The Effects of Various Mobile Technology Strategies on Malpractice Liability A. Decision-Making Aids B. Remote-Sensing Mobile Devices C. Collaborative Videoconferencing Evaluations D. The Growth of Direct, Instant Communication with Clinicians III. Malfunctioning Mobile Devices IV. New Obstacles Relating to Privacy and Security on Mobile Devices V. Additional Safeguards to Liability Conclusion INTRODUCTION The application of telecommunications techniques to the practice of medicine otherwise known as telemedicine provides numerous benefits to assist healthcare professionals in providing higher quality, more affordable, and more efficient care to patients. The most widely used definition of telemedicine, taken from The Telemedicine * J.D. 2013, University of Virginia School of Law; B.Sc. 2009, University of Washington. The author wishes to express his gratitude and appreciation to his family for their invaluable love and support. The author would also like to thank both Monisha Singh and the staff of the Virginia Journal of Social Policy and the Law for their invaluable comments and suggestions.
2 222 Virginia Journal of Social Policy & the Law [Vol. 20:2 Development Act of 1996 and applied in Hageseth v. Superior Court, states that it is the practice of healthcare delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communication. 1 Although telemedicine encompasses a wide range of devices and practices, this Note will address the smartphone s specific applications to telemedicine. A 1992 study regarding the interaction between healthcare and telecommunications concluded that healthcare costs could be reduced by approximately $36 billion per year by properly implementing more modern technology. 2 Nevertheless, the use of telecommunications-based technology in the healthcare industry is not without risks. This Note will analyze this paradox in the context of modern internet-capable mobile devices ( smartphones ), focusing specifically on the liability issues connected to their use that are likely to affect early adopters. I. BACKGROUND Telemedicine dates back to the early 1950s when seven hospitals in Nebraska, Iowa, North Dakota, and South Dakota were connected by a specialized telephone network in order to provide weekly audio lectures. 3 The lectures proved quite successful, and by 1970, doctors had logged 1267 hours on the system, which had expanded to include other hospitals across the United States. 4 Most of the hours logged, however, were for physician education and not for actual patient care. 5 Patients could still only reach their doctors via landline phones or face-to-face interaction. As late as the 1970s, it was still typical for medical practitioners to have long and lasting relationships with the majority of their patients. New patients were usually an acquaintance or family member of an existing patient and the physician-patient relationship was built on the strong foundation of trust that stemmed from such a prior relationship. The public viewed family doctors, rather than hospitals, to be the source of their medical care. When the pager was introduced into the medical industry, it set in motion a drastic shift in the provision of healthcare 1 Hageseth v. Superior Court, 150 Cal. App. 4th 1399, 1424 (Cal. Ct. App. 2007). 2 ARTHUR.D. LITTLE, INC., Executive Summary, in TELECOMMUNICATIONS: CAN IT SOLVE AMERICA'S HEALTH CARE PROBLEMS? (1992). 3 Douglas D. Bradham et al., The Information Superhighway and Telemedicine: Applications, Status, and Issues, 30 WAKE FOREST L. REV. 145, 149 (1995). 4 5
3 Winter 2012] Measuring Malpractice 223 services. 6 Pagers allowed hospitals to have considerably more control over doctors, thereby tying physicians to the hospital. 7 Although the pager was a relatively simple device and was only capable of one-way communication, physicians were expected to respond quickly to pages. Since patient records could not be transmitted via pager, it was relatively easy to abide by the standards set forth in the Health Insurance Portability and Accountability Act (HIPAA). Patients began to notice, however, that their doctor was working longer hours at the hospital and doing away with the once-customary house calls. The invention of smartphones has come about during another shift within the healthcare industry. Hospitals are moving away from operating as charitable organizations to functioning more like businesses. 8 Many hospitals have become for-profit organizations that advertise directly to patients, a term that is quickly becoming interchangeable with clients. The shift to a more profit-driven approach has given hospitals a greater incentive to demand more instantaneous and efficient communication with physicians. Whereas pagers allowed for very limited, one-way communication between the hospitals and the physicians, cell phones particularly smartphone devices allow instant, two-way communication between hospitals and practitioners, enabling immediate transmission of and access to electronic health records, x-rays, and MRIs. Furthermore, they open doors to smartphone applications and the unlimited wealth of information available on the Internet. Instantaneous forms of communication and handheld internet access are not without their tradeoffs, however. I. MOBILE TECHNOLOGY S EFFECT ON LIABILITY Technology has changed the way the public views medical care. By using the Internet, people are able to research their own symptoms and self-diagnose. A survey prepared by the Pew Internet and American Life Project reported that 84% of the individuals sampled who had seen a medical professional in the past twelve months had searched online for health information. 9 In another study by the American Academy of 6 Chris Helm, Six Things Hospitals Need to Know about Replacing Pagers With Smartphones: Paging: The End of an Era, HEALTHCARE FIN. MGMT. ASS N N.J. CHAPTER FOCUS, Early Summer 2012, at 7, available at 7 8 Jill A. Marsteller et al., Nonprofit Conversion: Theory, Evidence, and State Policy Options, 33 HEALTH SERVICES RES. 1495, 1496 (1998). 9 Susannah Fox & Deborah Fallows, Internet Health Resources, PEW INTERNET & AM. LIFE PROJECT 15 (July 16, 2003), available at ly_2003.pdf.pdf.
4 224 Virginia Journal of Social Policy & the Law [Vol. 20:2 Dermatology, 67% of patients went online to research a medical procedure. 10 Additionally, people have become more assertive by using various tools in a proactive manner before and after discussing their ailments with physicians. The wealth of information on the Internet offers individuals the opportunity to double- and triple-check diagnoses with other people who may have similar symptoms through forums and other chat groups, as well as the opportunity to consult online medical databases such as WebMD. Proponents of the empowered patient argue that access to online resources reduces both patient and physician liability by allowing patients to double-check a diagnosis. 11 On the other hand, in many cases, patients often do not have the training or ability to self-diagnose accurately. An adversarial relationship between patient and doctor arising from a mistaken self-diagnosis may be more likely to lead to a lawsuit than a relationship based on trust and deference to the practitioner s education and experience. 12 However, no real-world studies have been conducted to analyze whether empowering patients to self-diagnose outweighs the liability that may arise. In addition, patients now routinely obtain referrals through hospitals or online insurance provider lists, rather than from doctors themselves. After a patient schedules an appointment, usually without ever speaking directly to the doctor, physicians may spend the entire appointment facing a computer screen, incorporating data into the electronic health record, instead of giving their full attention to the patient. Additionally, the abilities of smartphones range from viewing x-rays to directly e- mailing patients, allowing hospitals to push doctors to handle more cases remotely to increase efficiency. 13 As smartphones become a viable means of communication between physicians and patients, both patients and practitioners will be less inclined to make the effort for an in-person, face-to-face interaction. 10 News Briefs: New American Academy of Dermatology Survey Finds Patients Do Their Homework, MEDSCAPE TODAY NEWS (Oct. 30, 2002), 11 Patient Safety Advocates for Health Care Issues, THE EMPOWERED PATIENT COAL., (last visited May 27, 2013) (discussing an organization created to improve the quality and the safety of their healthcare by focusing on information and education). 12 Mark J. Houser et al., Fear of Malpractice Liability and its Role in Clinical Decision Making, in DECISION MAKING IN PSYCHIATRY AND THE LAW 209 (Thomas M. Gutheil et al. eds., 1991). 13 Jessica Marcy, Home Health Advocates Push Remote Monitoring in Medicare, KAISER HEALTH NEWS (Dec. 6, 2011, 12:55 PM),
5 Winter 2012] Measuring Malpractice 225 The reduction of face-to-face interaction between patients and doctors has contributed to people describing their doctors as calloused or cold. 14 When a doctor has made a good impression on a patient, oftentimes an apology is all that is needed to keep an angry patient from filing a lawsuit when something goes wrong. 15 This tactic is much less likely to succeed when doctors fail to develop positive relationships with their patients due to correspondence via smartphone and lack of direct interaction. Interestingly, a study evaluating the satisfaction of prisoners receiving non-emergency medical care via videoconference had slightly different results. The study noted that the prisoners were initially skeptical of the quality of care they would receive via videoconference. 16 Surprisingly, after receiving care via videoconference, most prisoners expressed satisfaction with the level of care they received. 17 This study, however, fails to address its own shortcomings. The population studied is a highly discrete group that is likely not representative of the nation at large. Additionally, prisoners tend to come from low-income households where access to quality healthcare is likely to have been minimal. 18 These patients are unlikely to have been in the best position to judge the utility of videoconferencing compared to faceto-face interactions. Furthermore, since the participating doctors were aware that these meetings were being supervised and analyzed, they may have been more attentive to each patient than they might have otherwise been if unsupervised. Moreover, if this practice was more prevalent and doctors had to fill quotas and care for more patients, the quality of care would likely decrease. If this program were to become commonplace, many legal dangers could arise from the carelessness that grows from habitual exercises absent properly defined methods of care. From a public policy standpoint, it is desirable that the healthcare industry evolves to meet the needs of the modern, digital world without undue fear of widespread malpractice liability. However, videoconferences and -capable smartphones might incentivize faster, less careful responses to the numerous cases a physician handles in a single day. The desire for efficiency may produce more errors if 14 See generally Jeff L. Magenau, Digital Diagnosis: Liability Concerns and State Licensing Issues are Inhibiting the Progress of Telemedicine, 19 COMM. & L. 25 (2005). 15 MICHAEL S. WOODS & JASON I. STAR, HEALING WORDS: THE POWER OF APOLOGY IN MEDICINE 27 (2004). 16 Rashid L. Bashshur, Public Acceptance of Telemedicine in a Rural Community, 4 BIOSCI. COMM. 17, 34 (1978) (finding that telemedicine useful for emergencies and minor problems, but patients preferred in-person appointments). 17 See generally id. 18 Maureen M. Dove, Law and Fact of Health Care in Prisons, MD. B.J., Nov./Dec. 2011, at 4, 11.
6 226 Virginia Journal of Social Policy & the Law [Vol. 20:2 healthcare professionals are attempting to maintain care for patients using multiple methods of communication. These errors may lead to liability for physicians under negligence theories. Physicians might also risk liability if they fail to incorporate technological advances into their treatment methods. In 1990, the District of Columbia Court of Appeals had a chance to address the issue of medicine and technology in a decision that is still followed today. Washington v. Washington Hospital Center involved a patient who suffered cardiac arrest and brain injuries due to oxygen deprivation that began when a nurse incorrectly inserted an endotracheal tube down the patient s throat and into her stomach instead of her lungs. 19 In a normal medical malpractice negligence case, the plaintiff would have to establish the applicable standard of care, deviation from the standard, and a causal relationship between the deviation and the injury that occurred. The portable carbon dioxide monitoring technology that would have warned the staff of the error was new at the time and, according to the hospital s expert witness, not yet considered mandatory. 20 The Chairman of the Department of Anesthesiology, however, had written a letter stating that if monitors were not provided, the hospital would fail to meet the national standard of care. 21 Although the technology in question was not yet a national standard, the court ruled that there was sufficient evidence to send the issue to the jury. 22 This is significant in light of the tendency of courts to avoid sending malpractice suits to the jury, under the assumption that most juries tend to be sympathetic to injured patients. After Washington, hospitals and physicians in this jurisdiction have an obligation to stay abreast of new technological developments in the industry or run the risk of legal liability. 23 II. THE EFFECTS OF VARIOUS MOBILE TECHNOLOGY STRATEGIES ON MALPRACTICE LIABILITY Despite the growing distance between doctors and their patients, many hospitals are attempting to find ways to take advantage of the capabilities of smartphones while avoiding the potential for liability. This may be a difficult balance to strike given the pressure from the more profit-driven business model of the modern hospital. Primary care doctors are currently in short supply, and smartphones would allow physicians new opportunities to provide care to those in need. Current mobile technology allows doctors to remotely treat and monitor patients 19 Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 180 (D.C. 1990). 20 at at
7 Winter 2012] Measuring Malpractice 227 in ambulances, war-zones, rural areas, prisons, and their homes. Additionally, modern technology allows for easier consultations with specialists located in major metropolitan areas and could be used for consultations when performing complex procedures in operating rooms. 24 It may take time for mobile devices to provide better care than face-to-face interactions, however. Many ailments may be overlooked when a physician is unable to touch, feel, and poke a patient. Furthermore, the clarity and detail from a mobile device is no match for in-person interactions. Additionally, while courts have required that doctors use the most up-to-date technology available, physicians must walk a fine line considering that they may also be held liable for using cutting edge technology that has not yet been proven more beneficial than a current method. 25 In Riser v. American Medical International, Inc., the Court addressed the use of technology in patient treatment when that technology had not yet proven to be more beneficial than a current method. 26 The plaintiff in Riser received an unplanned X-ray examination using new imaging technology while under sedation. 27 Although the patient was under sedation and could not consent to the procedure, the court found that the defendant had violated the standard of care by performing a particular test without consent because he [knew] or reasonably should [have known] that the procedure [would] be of no benefit to the patient. 28 Riser may present a significant barrier to the implementation of mobile devices in healthcare settings. The use of mobile devices is a significant shift in the day-to-day practice of medicine, and it will take time for physicians to wield the technology in ways that overcome the benefits of in-person treatment. Nevertheless, Monique Levy, senior director of research at Manhattan Research, has predicted that [b]y 2012, all physicians will walk around with a stethoscope and a smart mobile device, and there will be very few professional activities that physicians won t be doing on their handhelds. 29 With all the information available through 24 Anne Eisenberg, Those Scan Results Are Just an App Away, N.Y. TIMES, Oct. 15, 2011, 25 See, e.g., Riser v. Am. Med. Int l, Inc., 620 So. 2d 372 (La. Ct. App. 1993) at at Ron Rajecki, Physician Smartphone Adoption Rate to Reach 81% in 2012, MODERN MED. (Nov. 27, 2009), modernmedicine/medical+economics/physician-smartphone-adoption-rate-toreach-81-in-/articlestandard/article/detail/
8 228 Virginia Journal of Social Policy & the Law [Vol. 20:2 applications and the Internet, not to mention , phone, and text message communication with patients and staff, a patient s electronic health file will be filled to the brim with data. Even if a provider is able to solve the complex issue of how to combine all of the information into a single, navigable file, the practitioner may still face the threat of malpractice suits under the precedent set by Breeden v. Anesthesia West. 30 In Breeden, an anesthesiologist performed a pre-anesthetic evaluation of the plaintiff to determine risk in preparation for a gallbladder operation scheduled the following morning and noted that there was no evidence of peripheral neurological deficits. 31 In the morning, the plaintiff was evaluated again by a nurse, who noted that the patient was experiencing tingling of [right] leg, [right] side of body to mid chest. 32 The entry was made forty-five minutes before an anesthesiologist re-evaluated the plaintiff and administered the anesthesia. 33 The court found the anesthesiologists liable for not being aware of the nurse s notes in the health record. 34 The court determined that practitioners have a non-delegable duty to be aware of reasonably available medical information significant to the health of his or her patient prior to administering anesthesia due to the severity of the injuries that are at risk. 35 Combined with health records that are constantly updated and full of a massive amount of data, this requirement may cause a shift from the role of a clinician as a care provider to more of a case file researcher in order to reduce their amount of exposure to liability. Ms. Levy also predicted that [p]hysicians will be going online first for the majority of their professional needs and will be regularly pulling online resources into patient consultations. 36 When patients see clinicians regularly attached to their mobile devices, they may assume that the physician is not confident in his or her own expertise and begin to lose trust in the physician s abilities as a diagnostician. Additionally, liability could be extended to hospitals and clinics as practitioners spend more time employing smartphones and other mobile technology provided by the hospitals in order to treat patients. Malpractice law has traditionally treated doctors as independent 30 See generally Breeden v. Anesthesia W., P.C., 656 N.W.2d 913 (Neb. 2003) (holding that anesthesiologists have a non-delegable duty to be aware of all available medical information about patients). 31 at at at Rajecki, supra note 29.
9 Winter 2012] Measuring Malpractice 229 contractors, thus shielding hospitals from liability. With hospitals increasingly providing technology to doctors, however, patients may reasonably begin to view the clinicians less as an independent contractor and more as an employee of the hospital. For example, the standard articulated in Burless v. West Virginia University Hospitals 37 might be extended to cover the increased use of mobile technology. In Burless, the court set specific guidelines for determining whether a hospital was liable, requiring a plaintiff to bring evidence showing that the hospital committed an act that would lead a reasonable person to believe that the physician was an agent of the hospital, or that the hospital held itself out as a provider of care without giving the patient notice to the contrary. 38 The more attached a physician is to the tools provided by a hospital, the more likely it will be that a patient will reasonably believe that a physician is an agent of the hospital. Mobile devices have the inherent benefit of being portable, and the patient may never see the physician without physical control over the device. The Burless court also looked at the totality of the circumstances, allowing discretional weight to be given to the patient s level of reliance; it also considered the results of the inherent function test, which allowed the court to analyze whether the device at issue was an integral part of the total hospital function. 39 There are a number of specific practical applications of mobile technology in the healthcare industry, each potentially increasing liability for hospitals and physicians. These applications include: decision-making aids, remote-sensing devices, videoconferencing tools, and instant communication devices. This Note will address each specific application in turn. A. DECISION-MAKING AIDS One of great attributes of smartphones is that they give a user the ability to obtain a vast amount of factual data from virtually any physical location. For practitioners, this means smartphones can assist them in taking appropriate actions when implementing strategies of care. In August 2010, Apple Inc., the owner of the second largest mobile application marketplace, reported that there were over 10,000 medical, health care, and fitness applications available for download. 40 The use of these applications varies widely, from implementing exercise and diet regimens to assisting in diagnosis and emergency procedures such as the Heimlich maneuver and cardiopulmonary resuscitation (CPR). The immense variety originating from thousands of developers leads to the 37 Burless v. W. Va. Univ. Hosps., Inc., 601 S.E.2d 85 (W. Va. 2004). 38 at at Health Apps Raise Issue of Liability, YOUNGSTOWN NEWS, May 1, 2011,
10 230 Virginia Journal of Social Policy & the Law [Vol. 20:2 question, how does a consumer or physician know which applications are reliable and accurate and which are not? If a developer makes an application depicting how to perform CPR and the application contains incorrect data that causes an injury, negligence liability is unlikely to be shared with the developer. If smartphone devices are classified as medical tools, the Food and Drug Administration (FDA) will have authority to regulate their application, 41 and may place responsibility on the developer. 42 However, developers may attempt to disclaim responsibility within the terms and conditions that must be accepted before installing the product. Additionally, even if the thousands of applications were to obtain designation as medical tools, the FDA and other regulatory agencies do not have the work force to police the hundreds of applications being added every day that the public may refer to when self-diagnosing. The problem of inaccurate information on smartphone applications becomes exponentially worse when physicians themselves rely on it when assessing their patients. B. REMOTE-SENSING MOBILE DEVICES Remote-sensing mobile devices assist in the acquisition of information by allowing a machine to record data from a patient who is not under the immediate supervision of a health care provider. 43 Often, these devices consist of a transmitter that a patient takes home from the hospital, allowing a clinician to monitor the patient s vital signs or medication compliance without being physically present. 44 This strategy, also known as telemonitoring, is capable of providing information about virtually any vital sign and can transmit data twenty-four hours a day, seven days a week, as long as the patient has the necessary monitoring equipment with her. While telemonitoring allows an observant physician to provide better care for the patient, it may also contribute to data overload, thus exposing a doctor to Breeden liability. 45 Telemonitoring may create additional sources of potential liability since the devices themselves are often the property of the hospital, 41 Satish Misra, Should Your Medical Apps Be Regulated in the Same Way as a Defibrillator?, IMEDICALAPPS, Sept. 12, 2011, 2011/09/medical-app-regulated-aicd-2/. 42 Satish Misra, Why Malpractice Lawyers Could Be Knocking on the Door of the Medical App World A Big Danger for the Small Developer, IMEDICALAPPS, Mar. 16, 2010, malpractice-iphone-medical-apps/. 43 Peter Leijdekkers et al., Smart Homecare System for Health Tele-monitoring, PROC. FIRST INT L CONF. ON DIGITAL SOC Y 3 (2007) See Breeden v. Anesthesia W., P.C., 656 N.W.2d 913 (Neb. 2003).
11 Winter 2012] Measuring Malpractice 231 thereby giving rise to a duty on the hospital s part to use reasonable care in their maintenance. 46 Additionally, the use of remote devices may lull patients into a false sense of security under the notion that their vitals are being monitored around-the-clock. Mistaken reliance by patients on the impression of around-the-clock monitoring may make it more likely that a court will find that malpractice negligence occurred. In light of these liability issues, not to mention the cost of maintaining the proper equipment and staffing, hospitals may be less inclined to provide telemonitoring systems for their patients. It is worth considering that the resources needed to implement telemonitoring systems might not necessarily be available to many hospitals. This may place some hospitals, especially poorer rural or inner-city facilities, in a tough predicament. Eventually, these types of devices may become a national standard, creating an obligation to implement the devices under Washington v. Washington Hospital Center 47 that may be financially out of reach for less profitable hospitals. In addition to potentially being liable for improperly maintained equipment, hospitals may be liable for failing to respond adequately to signals from remote-sensing devices. In Wickline v. State, the Superior Court of Los Angeles County found the hospital, insurance company, and physicians liable for malpractice where the patient had been sent home after undergoing multiple surgeries to remove a blood clot, per the decision of her insurance provider. 48 Neither the physicians nor the hospital attempted to dissuade the provider, and proceeded to send the plaintiff home with directions for her husband to continue her care. 49 In at least one instance, the plaintiff s husband telephoned a physician with concerns over her deteriorating condition. 50 Expert testimony stated that if the plaintiff had either stayed in the hospital or returned to the hospital, adequate steps could have been taken to prevent the loss of her leg. 51 Although the California Court of Appeals ultimately reversed the lower court, finding the state, the insurance company, and the hospital not liable for medical malpractice, it is nevertheless foreseeable that courts might articulate a theory of negligence that would extend beyond the physical walls of the hospital in other situations. Like the husband in Wickline, remote-sensing devices work by notifying care providers when the patient s condition deteriorates. Courts might extend such a theory to remote sensing devices that fail to respond adequately to a patient s 46 See, e.g., Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991) (holding that hospitals could be found liable if they had knowledge of inadequate staffing or malfunctioning equipment). 47 Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 180 (D.C. 1990). 48 Wickline v. State, 239 Cal. Rptr. 810 (Cal. Ct. App. 1986). 49 at at 817.
12 232 Virginia Journal of Social Policy & the Law [Vol. 20:2 condition, analogous to the Superior Court finding the hospital negligent for sending the Wickline plaintiff home to her husband without proper instruction. C. COLLABORATIVE VIDEOCONFERENCING EVALUATIONS The newest smartphone devices to reach the market allow real-time, two-way, auditory and visual communication between clinicians and patients, enabling care to be managed from a remote location. Videoconferencing allows for a wide range of practical applications, and presents an opportunity for patients with rare disorders to interact directly with renowned specialists that might otherwise be unable to meet with them. Most importantly, videoconference evaluations will eliminate costly travel time for both parties. The biggest issue raised by the adoption of videoconference technology is attempting to predict what standard courts will apply when addressing malpractice suits. The Centers for Medicare & Medicaid Services (CMS) have tackled this issue as it relates to Medicare, 52 stating that providers will be reimbursed according to the Geographical Practice Cost Index (GPCI) for the locality of the care provider, 53 effectively transporting the patient to the practitioner. Considering the fact that CMS has already addressed this issue in regards to the federal Medicare program highlights the importance of this issue. Because states maintain individual control over other healthcare programs, a uniform national standard may be elusive. Courts have yet to determine what to do in situations where a physician is licensed and practicing in a state that has a $2 million liability cap and commits negligence in another state that has no cap on liability. Furthermore, Health Maintenance Organizations (HMOs) are also very interested in determining how the issue of interstate liability will affect them, as some HMOs are currently immune from liability by statute. Furthermore, there is a wide spectrum of state laws regarding interstate health care regulations, ranging from very strict to very lenient. For instance, Kansas requires practitioners to be licensed in the state before using telemedicine techniques in the treatment of Kansas citizens. 54 Kansas may require licensure in order to have tighter control over the market, to increase the cost of entry, or to maintain a high 52 MARGARET O BRIEN-STRAIN ET AL., REVIEW OF ALTERNATIVE GPCI PAYMENT LOCALITY STRUCTURES (July 28, 2008), available at https://www.cms.gov/physicianfeesched/downloads/reviewofaltgpcis.pdf. 53 at See generally Jeff L. Magenau, Digital Diagnosis: Liability Concerns and State Licensing Issues are Inhibiting the Progress of Telemedicine, 19 COMM. & L. 25 (1997).