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The following is intended for informational purposes only and should not be construed as legal advice. The information provided in this post is not a substitute for professional legal advice and should not be relied upon as such. Readers should always consult with a licensed attorney or qualified legal professional for advice on specific legal issues. The author of this post and any entities associated with the author are not responsible for any actions or decisions taken by readers based on the information provided in this paper.

"If I have a physician or contract with a team of physicians licensed in every state,
does that make my remote second opinions issued anywhere legal?"

This question inevitably comes up. On its surface, you might expect that this encompassing licensure paves the way for your organization to issue remote second opinions anywhere in the country. However, a close reading of the law of each state contradicts that premise.

In order to provide a remote second opinion, a physician that is not licensed in the state in which the patient is physically located (ostensibly, one of your specialists), must either rely on an exception or exemption from that state’s licensure laws and regulations in order to legally deliver that opinion. Having another physician, not the one rendering the opinion, who is licensed in the target state, may actually not provide you with sufficient legal stature.

Although lumped together into the category of telemedicine, the law of most U.S. states and territories treatsepisodic medical consultations (physician to physician consults or remote second opinions) differently. 

Currently, 15 states and territories specifically permit an out-of-state physician to provide a consultation or second opinion directly to a local patient. An expanded number of 35 jurisdictions allow this consult to occur as long as this consult or opinion is done in conjunction with the local physician who maintains the physician -patient relationship.

Only 4 states actually prohibit these consults, leaving 15 jurisdictions silent on whether this practice is or is not permitted.

The following paper is intended for informational purposes only and should not be construed as legal advice. The information provided in this paper is not a substitute for professional legal advice and should not be relied upon as such. Readers should always consult with a licensed attorney or qualified legal professional for advice on specific legal issues. The author of this paper and any entities associated with the author are not responsible for any actions or decisions taken by readers based on the information provided in this paper.

In the United States, it is well established that individual states and territories, rather than the federal government, regulate the practice of medicine within their borders. That means that unless there is an exception, a provider must be licensed in the state in which the patient is located in order to deliver a medical diagnosis or to prescribe treatment to a patient in a specific jurisdiction. The licensure process is burdensome and expensive, effectively impeding all but the most determined physician from seeking this legal authority to practice beyond his or her state’s borders.

Now that the dust is settling as we get accustomed to our post-pandemic world, those in the telemedicine world and organizations thinking about providing remote second opinions are still seeking clarity on what remote programs are possible. Has anything changed? Or, are we back to where we started before the pandemic?

Physician-to-physician consults are occurring in your hospital, potentially putting
your organization at risk, while lacking any direct financial benefits for the hospital.

Skilled and experienced physicians are your hospital’s most valuable asset. Their time and knowledge are in great demand. Yet, many regularly engage in a process of giving this away free of charge putting your organization at risk as they do.

Your best and most specialized physicians have unique knowledge and experience. When presented with a complicated diagnosis in your doctor’s subspeciality, colleagues and their patients, reach out for the opinion of your doctors. It’s an informal process and normally doesn’t have any material impact on your hospital. Or does it?