For reasons I don’t recall, I subscribe to the JAMA Network, which is a monthly medical journal published by the American Medical Association with a large variety of articles about the biomedical sciences. I’m reasonably sure my interest was driven by the pandemic. In any case, much of the contents are beyond my ability to understand. But every so often, I find something compelling either about some disease or, in the present case, about the manner and method by which medicine is practiced in our peculiar collection of regions we call “states.”

The present issue is how we have collectively prevented doctors from counseling patients across state lines into states where they are not “admitted to practice.”

As a retired lawyer, I certainly understand the reason we limit, with a notable exception, unadmitted lawyers from the practice of law in states in which they have not passed the state bar exam. That reason is that the laws of each state often vary significantly, particularly regarding the details of procedure but also in many substantive areas such as estate law. It would be problematic to permit lawyers with no knowledge of those laws and procedures to regularly give advice to clients in those states.

There is, as stated, a notable exception, which is that out-of-state lawyers may appear in trials and some other court proceedings if they associate with “local counsel,” an attorney who is admitted to practice in that jurisdiction. The “foreign” attorney may do all the work, but “local counsel” must sign off on it as assurance to the court that the foreign attorney is complying with local law and procedure.

Turning then to the issue of “foreign” doctors “practicing medicine” by, in modern times, counseling patients using technologies like Zoom for “televisits,” I have wondered for some time why the states restrict this activity. Laws and procedures differ from state to state, but is the science on which medical practice is based different from state to state? I am not aware that it is.

Yet, as reported in Jama Network, https://tinyurl.com/5dab4tcm, Providing Responsible Health Care for Out-of-State Patients:

while exceptions may have been made here and there during the pandemic, the states have returned to their prior position of barring “foreign” doctors from remotely advising patients:

…physicians have increasingly been told by lawyers and compliance officers that calling patients located in another state is a legal gray area and introduces a risk of sanctions. States have accelerated this concern. The New Jersey Attorney General’s Office recently warned out-of-state physicians that, without a New Jersey medical license, “any practice by way of telemedicine, will constitute the unlicensed practice of your profession, and may subject you to administrative and criminal action” (email communication, March 31, 2023). These restrictions are impeding other communications as well. When Virginia ended its temporary pandemic regulations around physician licensure, Johns Hopkins had to inform more than 1000 patients they were no longer eligible to utilize telehealth appointments with its providers.

Physicians given this advice are understandably frustrated because these restraints disrupt and reduce the quality of the care they provide. This is especially true for specialty physicians who serve a broad geographic area and physicians whose practice is near a state border. For example, many states lack any pediatric subspecialists and the majority of the population must travel more than 100 miles.

Notwithstanding the negative consequences for patients who may have a long-standing successful relationship with a doctor in another state where the patient, for example, once lived, state laws say such relationships must end. The law of Texas is typical:

Any “person who is physically located in another jurisdiction but who, through the use of any medium, including an electronic medium, performs an act that is part of a patient care service initiated in this state…that would affect the diagnosis or treatment of the patient, is considered to be engaged in the practice of medicine.

I didn’t know this, but the JAMA article notes that many telemedicine visits are now accomplished by persistent and/or desperate patients who “sit in cars or coffee shops on smartphones, searching for good WiFi and sharing tips about the best parking lots that are just across the state border.^”

 These constraints severely inconvenience patients, especially those with serious illness, physical disabilities, or lower income and limited resources; threaten patient privacy; encourage discontinuity of care; and might force private health care conversations to take place in ineffective and public settings.

Have we lost our collective minds?

Not only is this bad for patients, but it places doctors in a precarious legal situation in which the “best” solution for them is simply to “fire the patient.” Every doctor these days carries medical malpractice insurance. Is continuing to advise an out-of-state patient malpractice under those policies? Or is the opposite true, that failing to continue giving needed advice is malpractice? What about the not-unusual situation where the patient cannot reach a local doctor and seeks out his former doctor in the prior state of residence? Should that doctor respond? Not respond? It’s a Hobson’s choice.

The authors of the JAMA article propose several common-sense solutions that, for example, allow for “any follow-up care after a relationship has been appropriately established through in-person or virtual means.” A “bigger” solution would be federal preemption of the field that would override state laws. Examples include expansion of the principles in the Sports Medicine Licensure Clarity Act in which reasonable exceptions for licensure are created to cover clinicians who travel with a sports team to another state and provide care, even if they are not licensed in the state in which the sporting event occurs.

Interestingly, the authors note that:

the delivery of medical care could be defined as being rendered where the physician is located, although that could potentially upend our existing system and impact state licensure authority. Although congressional action would mean the federal government supersedes, or preempts, existing state regulations, the advantage of either federal legislative approach is uniformity and clarity, rather than requiring physicians to navigate through 50 different approaches to the issue.

Indeed, such action would likely face a gauntlet of opposition from local doctors wanting to preserve their “monopoly” on access to local patients, present and future. Therein lies, I believe, the root of this problem. If someone can convince me that medical practice should vary from state to state in the manner of local law, I will confess error. Until then, I will assign “blame” for the present shameful situation on doctor protecting their turf.

If it was medically acceptable to do interstate televisits during the pandemic, then it must be true that there is no medical problem in the post-pandemic period to allow interstate doctor-patient communications as they choose.

This situation cries out for a federal solution. I understand that some states limit medical services such as assistance in death (known as Death with Dignity) which is forbidden in Virginia but allowed in many other states. A federal solution would leave responsibility for knowing such local restrictions to the doctors in question. Beyond that, let them practice their magnificent craft unimpeded by artificial state boundaries and licensure rules designed to protect doctors’ incomes rather than promote the welfare of all patients.