The free flow of sleep data to physicians who are not only invisible to the patient but also reside in a state different from the patient challenges traditional notions of the physician's license to practice medicine. All states have adopted laws which define the types of activity constituting the practice of medicine within their borders. Such laws generally prohibit persons from engaging in the unlicensed practice of medicine, and further punish physicians for aiding and assisting others in the unlicensed practice of medicine.
The threshold question is whether the professional interpretation of a sleep study constitutes the practice of medicine. Although each state defines the practice of medicine somewhat differently, the recent trend is for states to include the interpretation of diagnostic tests within the practice of medicine definition. Colorado's practice of medicine definition, which specifically includes the interpretation of tests, is representative. In full, the Colorado law provides that:
Practice of medicine In Colorado means holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever (38) (emphasis added).
At least 14 states have passed legislation specifically restricting the practice of telemedicine across state lines. For example, the Missouri statute defines the "practice of medicine across state lines" to mean:
1. The rendering of a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient within this state by a physician located outside this state as a result of transmission of individual patient data by electronic or other means from within this state to such physician or physician's agent; or
2. The rendering of treatment to a patient within this state by a physician located outside this state as a result of transmission of individual patient data by electronic or other means from within this state to such physician or physician's agent, definition (39).
An Oregon law specifically issues a special purpose license to outside physicians to practice within Oregon by distant communications, but only after the physician has first personally examined the patient (40). Other states, such as Alabama, issue a three-year special purpose license (41).
If the interpretation of the sleep study constitutes the practice of medicine, the next question is "which licensing authority governs?" The general rule in malpractice actions is that the patient's location at the time of service determines the location where the treatment occurs (42). As stated by the Ninth Circuit Court of Appeals in Wright v. Yackley (43):
In the case of personal services focus must be on the place where the services are rendered, since this is the place of the receiver's (here the patient's) need. This need is personal and the services rendered are in response to the dimensions of that personal need. They are directed to no place but to the needy person herself.
Although improper licensure may not, by itself, indicate negligence in all malpractice actions (44), proper licensure can be a condition to the presentation of a clean, nonfraudulent claim to a government healthcare program for reimbursement (45).
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