Endnotes to the TH-TM Report

Carrier	Total M.D.s Insured	No. CA M.D.s Insured	% Insured: CA/Total
SCPIE	10,179	10,170	100%
CAP/MPT	4,400	4,270	97%
Doctors' Co.	18,236	9,268	50%
MIEC	5,112	3,312	65%
Norcal	12,812	11,168	95%
Totals:	50,739	39,997

65. The involvement of large telecommunications conglomerates and their "deep pockets" might also provide powerful incentives for plaintiffs to bring malpractice actions involving telemedicine.

66. See, e.g., Keene v. Wiggins, 69 Cal. App. 3d 308, 31213 (Ct. App. 1977) (recognizing that, had physician volunteered care or treatment or otherwise attempted to serve or benefit the worker, there would be duty running to the worker).

67. See generally George E. Stevens, Ph.D., Physician's Liability Created by Telephone and Other Communications, Trauma, April 1993, at 45 (discussing cases that involve malpractice liability arising from telephone communications between physician and patient).

68. Clarke v. Hoek, 174 Cal. App. 3d 208, 217 (Ct. App. 1985).

69. Hill v. Kokosky, 463 N.W. 2d 265, 266 (Mich. Ct. App. 1990).

70. Robbins v. Footer, 553 F.2d 123, 12829 (D.C. Cir. 1977) (concluding that a specialist should be held to the standard of care based on the national standard in his specialty).

71. See 2 B.E. Witkin, California Procedure 461 (3d ed. 1985); see also Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (stating that "jurisdiction based on physical presence is one of the continuing traditions of our legal system").

72. See 2 Witkin, supra note 15, at page 494.

73. 2 id. at 712; Cal. Civ. Proc. Code º 410.30 (West 1990) (California codification of the inconvenient forum doctrine).

74. See Hector v. CedarsSinai Medical Center, 180 Cal. App. 3d 499, 50203 (holding that, while the manufacturer may be held strictly liable for a defective pacemaker, the hospital could not, because a hospital is a provider of professional medical services, not a supplier of products). However, where equipment failure occurred as a result of negligent maintenance or operation, rather than an inherent defect in the equipment, such reasoning would not apply, and the hospital or physician responsible for proper maintenance or operation would likely be held liable.

75. In 1932 the entire tugboat industry was declared negligent for failing to provide radio equipment after that technology bacame available. T.J. Hooper v. Northern Barge Corp., 60 F.2d 737 (2d Cir. 1932), cert. Denied, 287 U.S. 612 (1932). However, the judge noted that it was an exceptional case, and that "in most cases reasonable prudence is in fact common prudence." Id. At 739 (emphasis added). Given that the use of the telemedical technologies is still relatively new, it is unlikely that the courts will find a physician or hospital negligent simply on the basis that the physician or the hospital has not implemented the technologies. However, as the practice of telemedicine becomes more common and the telemedical technologies become more accessible, there will likely be a corresponding increase in the expectation of their use.

76. Cal. Health & Safety Code 1340 et seq.

77. Cal. Welfare and Institutions Code 14089 et. Seq.

78. Cal. Lab. Code 5150 et seq.

79. 10 CCR 130051 (H).

80. 10 CCR 1300.51(H).

81. Cal. Lab. Code 4600.5. Licensed Knox-Keene health plans, disability insurers licensed by the California Department of Insurance, or other entities may apply to become HCOs. See 8 CCR 9771. If the health care organization is a licensed Knox-Keene plan, the DWC will grant certification as an HCO if the plan is in good standing with the DOC. The Knox-Keene plan must provide the DWC with information, reports and records prepared and submitted to the DOC pursuant to the Knox-Keene Act, including information relating to provider accessibility. See 8 CCR 9771(d).

82. See Cal. Lab. Code 5177(e); 10 CCR 1959(G).

83. 10 CCR 1959(G).

84. 10 CCR 1959(G).

85. See 8 CCR 9770 et seq.

86. See 8 CCR 9770 et seq.

87. The HCO must provide information on expected case load and methodology, data and assumptions used in the calculations.

92. See 22 CCR 53911.5(a).

93. See 22 CCR 53922.5. An eligible beneficiary may, however, voluntarily choose to receive services from the GMC plan with service sites exceeding the maximum distance specified above.

94. Eid, Troy. "Roadblocks on the Information Superhighway: Removing the Legal and Policy Barriers to Telemedicine." Vision Becomes Reality: The Journal of the National Information Infrastructure Test Bed at 49 (January 1995).

95. Berger, Scott B., M.D., Ph.D. and Cepelewicz, Barry B., M.D., JD. "Review: Medical-Legal Issues in Teleradiology (reprint for publication in American Journal of Roentgenology (AJR) at 3.

96. Id.

97. Gilbert, Francoise, Esq. "Licensure and Credentialing Barriers to the Practice of Telemedicine." Western Governors Association Telemedicine Action Report: Background Papers (1995) at 33.

98. See Gilbert; see also Eid.

99. See Gilbert at 28. As Gilbert indicates, this is clearly the case for hospitals. However, managed care organizations that define their network of providers by contractual relationships are less dependent upon physical sites to determine who is practicing medicine on their behalf.

100. See 22 CCR 70703(a).

101. See 22 CCR 70703(c). In addition, it constitutes unprofessional conduct for a physician to practice medicine in a licensed hospital that has five or more physicians on the medical staff, if the hospital's board of directors has failed to establish rules organizing the physicians who are permitted to practice in the hospital into a formal medical staff. The staff appointments must be made on an annual or biennial basis. See Cal. Bus. & Prof. Code 2282.

102. Sanders, J. H. and Bashshur, L.L.: Challenges to the Implementation of Telemedicine; Telemedicine Journal 1:115-123 (1993).

103. See Barry at 3.

104. See Gilbert at 34.

105. Id. at 29.