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about equipment performance and practitioner proficiency have been raised in a number of areas, for example, in the context of laser surgery and mammography screening. Responses have included the development of professional standards or guidelines and, in some areas, governmental regulations. Systematic, evidence-based guidelines for clinical practice are gaining increasing legal recognition (IOM, 1992a). Although the American Medical Association and others have called for the development of guidelines for telemedicine, responses to date have been limited. As noted in Chapter 3, various standards for computer hardware and software and information exchange have been developed.
The question of whether "distance medicine" imposes a new standard of care has not apparently been litigated. The major uncertainties seem to involve absence of direct patient contact and the possibility that such contact might both provide additional crucial clues to a patient's condition and contribute to the creation of a therapeutic relationship (Granade, 1995b). Further, to the extent that face-to-face contact creates better understanding and sympathy between patient and physician, a telemedicine practitioner might be more vulnerable to suit from a patient who feels psychologically as well as physically distant.
The first four questions posed above would appear to be relevant for the intrastate as well as the interstate practice of telemedicine. The fifth question—where may a practitioner be sued—pertains only to the latter. The question is actually more complex, involving not only where a suit can be filed but also which state law governs. The Rules of Civil Procedure determine jurisdiction. In general, a defendant must either reside in or have had at least minimal contacts with a state to be subject to jurisdiction of that state's courts. Phone calls into a state for the purpose of telemedicine consultations may satisfy the requirement of minimal contact. The law governing decisions in a case, however, is not necessarily the law of the state in which the case is tried. For example, a telemedicine patient might bring suit in the state in which the consultant physician resides. Ordinarily, the law of the patient's home would still apply, but the circumstances of a particular case might prompt a dispute over which law should apply.
Some have argued that the laws of the practitioner's state should apply as they would if the patient was physically rather than "electronically"