1.Perednia, Douglas A., M.D., and Allen, Ace, M.D., Telemedicine Technology and Clinical Applications; JAMA Vol 273, No. 6, Feb. 8, 1995; 484.

2. Id. page 483.

3. Id. page 483.

4. Grigsby, Jim, Ph.D., et. al. Report 3: Telemedicine Policy: Quality Assurance, Utilization Review, and Coverage; Center for Health Policy Research; August 1994; page 2.14.

5. OSU College of Osteopathic Medicine, Oklahoma State University, Telemedicine Training and Research Center; Combined Medicine and Technology; educational brochure; 1995.

6. U.S. Congress, Office of Technology Assessment; Bringing Health Care OnLine: The Role of Information Technologies; OTA-ITC-624 (Washington, D.C.: U.S. Government Printing Office, September 1995); page 175.

7. Id. page 175.

8. Id. page 174.

9. The Warner Group; California Department of Corrections Video Communications Strategic Plan; April 1996; p.II-1.

10. Sandberg, Leslie A.; Working Paper; Telemedicine & Past, Present & Future; Strategic Planning Working Document for CalTrans, Center for the New West, 1995.

11. Getting Results: The Governor's Council on Information Technology, State of California, p.36.

12. Anon.; Violence Intervention Program at Los Angeles County and University of Southern California Medical Center; Program Brochure; 1996.

13. Anon.; Fact Sheet; County of Riverside, Department of Mental Health; 1996.

14. Western Consortium for Public Health; Department of Technical and Information Services; Berkeley, CA; Information Sheet; December 11, 1995.

15. See The Warner Group at II-1.

16. See The Warner Group, page II-2.

17. Demers, Ray Y., M.D., Ph.D., et. al.; An Exploration of the Dimensions of Illness Behavior; Journal of Family Practice; vol. 11, No. 7, 1980, page 1085.

18. Vickery, Donald, M.D.; Medical Self Care: A Review of the Program and Concept Model; American Journal of Health Promotion; Summer 1986; page 23.

19. Anon.; California Healthy Cities Resource Guide, 2nd Edition; Western Consortium for Public Health; 1992; page 2.2.

20. Id. page 3.5.

21. Anon; Executive Summary; All Kids Count Project; August 1996.

22. See Perednia at 486.

23. Id. 485.

24. See Perednia page 483.

25. Rigdon, Joan E.; Blurring The Line; Wall Street Journal; March 28, 1996; page R20.

26. See Perednia page 487.

27. Karinch, Maryann; Telemedicine; 21st Century Online Magazine; October 19, 1996; pages 1-5.

28. Id.

29. Id.

30. See Grigsby at page 3.1.

31. Id.

32. Anon; Legal and Regulatory Update; Center for Telemedicine Law; August 1996; page 2.

33. Anon; Legal and Regulatory Update; Center for Telemedicine Law; August 1996; page 4.

34. See A. Jergensen, "Videotapes of Therapy Sessions," Newsletter of CMRA (Jan. 1991) at 10; A. Jergensen and S. Schmidt, "The Use of Audio Recorded Test Reports," Newsletter of CMRA (March 1990) at 12.

35. See S. Norton, E. Lindborg, and C. Delaplain, "Consent and Privacy in Telemedicine," 52 Hawaii Medical Journal 340 (Dec. 1993) (practitioners discuss patient experiences and perceptions with telemedicine consultations).

36. A chorus of alarmist articles has swelled the press regarding the dangers of electronic medical records. See, e.g., J. Appleby, "Your Medical Records: Really Yours?" ContraCosta Times (Nov. 13, 1995); B. Woodward, "Who Will Read Our Medical Records," The Sacramento Bee (Nov. 20, 1995). These have been matched by rosy, feelgood stories on telemedicine which downplay the dangers of electronic databases. See, e.g., M. Werber Serafini, "HighTech House Calls," National Journal (Feb. 3, 1996).

37. Cal. Civ. Code 56 et seq.

38. Cal. Civ. Code 56.10(a); 56.26(a).

39. Cal. Civ. Code 56.13; 9 Cal. Code of Regs. 7140.5.

40. Cal. Health & Saf. Code 123149(g).

41. 9 Cal. Code of Regs. 7140.5(5).

42. 9 Cal. Code of Regs. 7140.5(7).

43. Civ. Code 56.14. 11.

44. Cal. Civ. Code 56.35.

45. Every state has adopted some privacy protection, usually through a combination of state constitutional safeguards, criminal and civil statutes, and common law and administrative adjudication. In general, state laws or case law recognize that patients have the right to limit the dissemination of the information and the right to control, within certain limits, where the physical records will be sent. However, there is an implied consent by the patient that hospital personnel other than the attending physician have the right to access patient information when the reason for the access is legitimate, and third parties may, in certain cases, have access to these data, such as when there are necessary circumstances. T. Eid, "Roadblocks on the Information Superhighway: Removing the Legal & Policy Barriers to Telemedicine," Vision Becomes Reality (Jan. 1995) at 48.

46. See Sheri Alpert, "Smart Cards, Smarter Policy: Medical Records, Privacy, and Health Care Reform," Hastings Center Report 13 (Nov.Dec. 1993).

47. The United States is a signatory to the Organization for Economic Cooperation and Development's "Guidelines Concerning the Protection of Privacy and Transborder Data Flows of Personal Data." The Guidelines, however, are nonbinding, and the United States has not adopted a comprehensive data protection plan on either the national or international level. See "Data Protection Law in the United States Part I," The DataLaw Report 4 (Jan. 1994). Eid at n.17.
The basic tenets of the confidentiality of the patient/physician relationship and the patient's right to dictate access to his or her personal information, have been wellestablished by federal and state common law, legislation and regulations. Examples of federal "common law" are Whalen v. Roe, 429 U.S. 589 (1977), which mandated that state health departments which have reporting requirements have adequate standards and procedures for protecting the privacy of sensitive medical information, and United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980), which outlined five factors to be balanced when determining the scope of the constitutional right to privacy. Again, however, this federal common law does not govern private health care entities.

48. Eid at 47.

49. See Eid at 47; 5 U.S.C. 552a.

50. The federal Freedom of Information Act, which mandates that the U.S. government grant the public access to federal records and documents, likewise exempts medical files already in the government's possession from unauthorized disclosure. See Eid at 48; 5 U.S.C. 552.

51. F. Gilbert, How to Minimize the Risk of Disclosure of Patient Information Used in Telemedicine," 1 Telemedicine Journal 91, 93 (1995).

52. Id.

53. Id.

54. Id.

55. Id.

56. Id. at 94.

57. Cal. Health & Saf. Code 123149(b).

58. Gilbert at 93.

59. Cal. Health & Saf. Code 123149 (b) and (g).

60. A 1992 report to HHS Secretary Dr. Louis Sullivan by the Work Group for Electronic Data Interchange (WEDI) estimated that 50 percent of all paper patient records are incomplete or unaccounted for. T. Eid, "Privacy Protection for PatientIdentifiable Medical Information," Telemedicine Action Report Background Papers, (June 1995) at 43.

61. American Civil Liberties Union of Massachusetts, "Privacy Rights Alert," (October 31, 1995) [mailto: jwrclum@aol.com].

62. Id.

63. See generally Western Governors' Ass'n Telemedicine Action Rep. (1995) (discussing the "most significant barriers to telemedicine," including an inadequate information infrastructure, regulatory distortions, public and private reimbursement policies that do not compensate for telemedicine services, physician licensing and credentialing rules that discourage physicians from practicing telemedicine within state and across state lines, concerns about malpractice liability associated with telemedicine, and concerns about the confidentiality of patient information).

64. There are five major professional liability carriers that provide coverage to physicians licensed in California which number 71,422 according to the Medical Board of California or 89,139 based on California Medical Association figures. The five carriers presently insure a total of 39,997 California licensed physicians as follows: (Source: Individual Liability Insurer)

CarrierTotal M.D.s
Insured
No. CA M.D.s
Insured
% Insured:
CA/Total
SCPIE10,17910,170100%
CAP/MPT 4,400 4,27097%
Doctors' Co. 18,236 9,26850%
MIEC5,112 3,31265%
Norcal 12,81211,168 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.

88. 8 CCR 9773(b)

89. 22 CCR 53000.

90. 22 CCR 53230.

91. 22 CCR 53911.5.

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.