Physicians and patients have used electronic consultations since Alexander Graham Bell invented the telephone. Patients call their physician for medical advice and physicians call other physicians for consultations. Records have also moved electronically between physicians, first as photocopies, then as faxes. For decades, laboratory tests, X rays, and ECGs have been evaluated by physicians who never see or talk to the patient. As discussed elsewhere in this section, the law has developed criteria for the legal duties that attach to these relationships, including when a physician–patient relationship is formed and when the remote physician has a duty to report directly to the patient.

Some of the current concerns with video and computer-based telemedicine are no different than they were with traditional telemedicine; the change is that we ignored them when it was the telephone and we now worry about them when it is the computer. Foremost among these is the issue of state licensing. Health care practitioners are licensed to practice medicine by the state, and one state’s license does not allow practice in a different state. There has been a great deal of concern about the legal problem of telemedicine over state lines. The concern is legitimate, it is just not new: physicians and patients have been talking on the telephone across state lines for as long as they have been using the telephone. This is especially evident in cities such as Kansas City, where the state line dividing Kansas from Missouri runs through the middle of the city. Although most physicians in one state know they cannot set up an office in the other state without getting a second license, none hesitates in giving patients across the state line advice over the telephone. This is true in all communities near state lines, although it is technically practicing medicine without a license because most states regard the location of the patient as the location where the care is delivered.

Traditional phone consultations and the review of tests and records by consultant physicians are predicated on there being either an existing relationship with a physician who was physically present, or that such a face-to- face relationship would follow the phone conversation if it was a patient asking a new physician for advice. Patients calling across state lines does not concern state licensing agencies as long as this is just an adjunct to the primary physical physician–patient relationship that is within the state where the physician is licensed. In contrast, telemedicine has been promoted as a way to bring physician services to remote areas without physicians, and to allow patients to have consultations with specialists that are not available in their area.