Experts say providers can take steps to protect themselves while leveraging the many benefits of teleradiology.

“It’s not easy to go to another country and get a judgment in court….If you are contracting for teleradiology, make sure the contractors properly protect you with assets in the United States, such as letters of credit.” — Michael Schaff, attorney, Wilentz, Goldman and Spitzer

Health care providers can clearly visualize the medical, economic, and lifestyle benefits of teleradiology, but the overall picture of this unregulated technology is still blurred by the potential legal risks of malpractice, fraud, or violation of patient privacy.

New technologies are widely embraced in radiology, but with these medical advances come risk. The electronic transmission of medical imaging has been around for only a few years, but teleradiology already has proven its usefulness. For remote and understaffed hospitals, it offers off-site reading in emergency cases and long-distance interpretation or consultation by specialists at larger facilities. In some cases, outsourcing may be more economical than staffing. It also begs the question: Why wake up a local radiologist in the middle of the night when one is awake and working the day shift halfway around the world?

Imagine this scenario: A patient goes to a hospital emergency department in the middle of the night complaining of a debilitating headache. A CT is taken and digitally transmitted to a radiologist who is working the day shift in India. The report comes back to the American hospital as normal, but a staff radiologist sees a subarachnoid hemorrhage on the same CT the next morning. By the time he can inform the attending physician, the patient has already died.

Who is at fault? The teleradiologist? The local radiologist? The hospital?

“Everyone is liable,” said Leonard Berlin, MD, chair of the Department of Radiology at Rush North Shore Medical Center in Skokie, Ill. According to Berlin, it doesn’t matter where an error occurs because a malpractice lawsuit is filed where the event occurred—in this case, where the scan was performed. Everyone involved ultimately would be named for vicarious liability, regardless of where the film was read, because it holds the employer liable for the negligence of the employee.

“Those are the nightmare cases. There’s no question that if and when that happens, there’s likely to be a malpractice lawsuit,” said Berlin. “Interestingly enough, I’m not aware of any such lawsuits.”

Teleradiology contractors offer a “don’t worry, be happy” scenario to health providers: No night calls. Rapid reporting. Rested doctors. Reduced staffing. But the legal ramifications of transmitting radiography continue to be debated in medical circles.

Because the law doesn’t evolve as quickly as technology, something has to go horribly awry and a lawsuit must be adjudicated for a legal precedent to be set. In addition to malpractice, other legal questions have been raised regarding security of electronic medical records and oversight for licensure and credentialing of teleradiologists.

Legal experts contend it may not be possible to hold radiologists outside of the United States accountable in American court cases. This put the burden of malpractice on American health care providers who use teleradiologists, often referred to as “nighthawks” in general reference to NightHawk, the pioneering company in teleradiology founded by Paul Berger, MD, in 1994.

“Every state has its own [medical] board that regulates licensing. There are no uniform rules. In some states you need to have a license in state A even though you may be providing the read in state B.”
—Michael Schaff, attorney,
Wilentz,Goldman and Spitzer

Although NightHawk boasts accreditation from The Joint Commission, there is no oversight of the industry and about 20 teleradiology companies provide services to hundreds of hospitals in the United States.

Arl Van Moore, Jr, MD, is chair of the American College of Radiology Board of Chancellors and president of Charlotte Radiology in Charlotte, NC. He said teleradiology works well when the contracted radiologists are licensed and credentialed in the United States and they have adequate malpractice coverage. But without oversight of foreign radiologists, he said the potential exists for breaches in patient privacy and fraudulent reports from “ghosting.” This is when a person—who may or may not even be a physician—reads transmitted scans that are then signed by a US-licensed physician who never actually saw the films. Despite rumors of this practice, Moore said he is unaware of any documented cases of ghosting.

Moore also said it would be difficult to ensure that companies overseas comply with the US Health Insurance Portability and Accountability Act (HIPAA), which was established to set national standards for electronic health care transactions and the security and confidentiality of patient data. But once patient medical records are transferred to another country, it’s not known who will secure the data to protect the patients’ right to privacy.

Because there have been cases in the past of foreign companies threatening to release outsourced data from American companies, the fear is that medical records could be compromised.

“Just because we have strong HIPAA laws here doesn’t mean they have the same laws in another country,” Moore said. “A lot of HIPAA compliance is built into our system.”

Charlotte Radiology provides 24-hour teleradiology services for small hospitals in the area that don’t have the on-site staff and expertise available in level I trauma centers. “We do our own nighthawking,” Moore said. “The ability to provide subspecialty care is the greatest benefit.”

But legal complications exist even if films are sent only across state lines, according to health care lawyer Michael Schaff, from the legal firm of Wilentz, Goldman and Spitzer in New Jersey. He said licensure is the most difficult issue in telemedicine because the requirements vary from state to state.

“Every state has its own [medical] board that regulates licensing. There are no uniform rules,” said Schaff. “In some states, you need to have a license in state A even though you may be providing the read in state B.”

The American Health Lawyers Association has published a new handbook to help explain the various state statutes that rule all telemedicine, which includes teleradiology. The book, Telemedicine: Survey and Analysis of Federal and State Laws, provides an overview of what physicians can and cannot do across state lines. It also addresses questions of malpractice and liability as well as the impact of fraud and abuse laws.

Schaff said hospitals or radiology groups considering using teleradiology must do their due diligence before signing a contract, especially if the services are international.

“It’s not easy to go to another country and get a judgment in court. Make sure they are subject to US courts,” Schaff advised. “If you are contracting for teleradiology, make sure the contractors properly protect you with assets in the United States, such as letters of credit. What good is it going to do you if you have to go to Bangladesh to sue them?”

The American College of Radiology Task Force on International Teleradiology recommends that teleradiologists be licensed at both ends of the transmission and that image readers are credentialed by the sending hospital. Although most states require physicians to be licensed to practice medicine, there are no laws requiring hospitals to verify a doctor’s credentials.

However, The Joint Commission has rigid rules for accreditation that require hospitals to have documented evidence of a physician’s license, education, training, and experience. Hospitals also must confirm the applicant’s identity, which can pose a challenge if they are living continents away.

“We usually require an in-person interview, but our hospital bylaws do give us the right to waive a personal interview when it’s deemed acceptable,” Berlin said. “We would not force someone to come in for an interview from overseas if the application is verified.”

Berlin said a hospital or radiology group would be foolhardy not to credential a teleradiologist in the event of malpractice litigation: “From a medical-legal point of view, even if it doesn’t break a state law, it seems to me it would be looked on very, very poorly by a jury.”

Most hospitals also require their physicians to carry malpractice insurance, and some have the added stipulation of an American insurance carrier to avoid international disputes in a settlement. “In credentialing, we want to know where their insurance is. We want our practitioners to have an American insurance company,” he said.

Berlin said most teleradiology services are paid for out of the radiologists’ own pockets, though a few hospitals subsidize them. The fee typically is about $60 and then the radiology group bills insurance for their official interpretation. However, there are also nonpaying and Medicaid patients, and Medicare will not reimburse for services rendered outside the United States.

Teleradiology may have been launched originally because of a perceived shortage of radiologists to cover the increasing number of radiology procedures for emergencies and diagnostics, but it also offers an opportunity to improve the lifestyle of doctors. That sounds good to some, but others wonder if they could be deemed dispensable if their expertise in radiology can be so easily outsourced.

“We’re not kidding anybody if we say it’s because of a radiologist shortage,” Berlin said. “We are using teleradiology because we want it to be more convenient and [give us] a more comfortable lifestyle. Let’s be realistic.”

He said that it has been a “godsend” for the eight radiologists who previously rotated call and had to go in to read films several times a night. Now they are rarely called in after hours, and then only for interventional procedures or if the teleradiology system breaks down.

“Instead of getting called two or three times a night, we may not get called but maybe once during the week,” said Berlin. “We feel it’s worth it for our peace of mind.”

Verina Palmer Martin is a contributing writer for Axis Imaging News. For more information, contact .