Medical Practice at a Distance May Be Illegal

I am grateful to Jeff Neimark, MD for adding to our knowledge of licensure problems in practicing across state lines (Boundary Violation J Am Acad Psychiatry Law 37:95–7, 2009), but this article should have been published where all American physicians (and perhaps patients as well) might read it. Dr. Neimark has revealed that some states consider that if a physician talks by telephone to her patient temporarily traveling in another state, where the physician does not hold a license, the physician might be committing a felony.

Patients should have reasonable access to their physicians when traveling, not only across state lines, but internationally as well, and risk of both criminal and civil sanctions extends to practice across international lines as well as across state lines. But in many cases courts and licensing boards deem that practice of medicine occurs where the patient – not the physician – is located at the time.

Dr. Neimark’s analysis appears to assume that the physician knows the patient’s location, but we must depend on the patient for that information unless made obvious, for example by request to order a prescription from a pharmacy. Perhaps the physician should ask the patient their location at the outset of every telephone conversation. But a savvy patient will soon learn to say he is located nearby in the same state if he wants help from his physician. (Physicians can sometimes avert this problem by suggesting that the patient transfer the prescription to a nearby pharmacy.)

Even if the physician knows the patient’s location at that instant the patient might maintain legal residence in North Dakota, own a vacation home in Texas where they reside for only a few months every year, but spend most of the year traveling abroad or living in yet another state. Such ambiguity further increases uncertainty about jurisdiction. Americans who reside in two or more states should not have to split their medical care between two or more sets of physicians because of irrational licensure laws.

Civil courts might hold a physician responsible for providing for patient access to emergency medical care or admission to hospital even when the patient’s location is far away. But even when the patient’s location is close to the physician’s patients should call 911 to obtain emergency assistance of any kind.

Physicians often provide in states where they are not licensed in order to better serve the patient, but by ignoring these archaic laws and assuming risk of prosecution to help patients traveling out of state we only enable a defective system. Before attempting to provide consultation in a state where she is not licensed a physician should contact that state’s licensing board and demand written confirmation of applicable law. Patients who travel to states like Missouri may do so at their peril. Only by drawing negative attention to such states can we hope to rectify this problem, but lawmakers, not physicians are responsible.

If you have experience of state licensure jurisdiction interfering with patient care, please leave comments here.

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