Telemedicine

Telemedicine (원격의료) is referred to clinical health care combined with information and communications technologies (ICTs). The Medical Act defines telemedicine as the provision of medical information and/or skills to medical doctors, oriental medical doctors or dentists in the distance taking advantage of information technologies including computer and video communications, etc.

Broadly defined, telemedicine is the transfer of electronic medical data from one location to another. This transfer of medical data may utilize a variety of ICTs from ordinary telephone lines to the Internet and satellites.

Historically, telemedicine was used to bridge the geographical distance and the socio-economic gap of quality health care. In Korea, though it is a small country, telemedicine seems to expand remarkably from the point of view of the nation's welfare policy on such merits as efficient exploitation of medical resources and considerable curtailment of health care expenses.

Both at home and abroad, telemedicine has come to success in establishing appropriate equipment and solutions for such non-conventional medicine. For example, technological barriers have been overcome to enable surgical operations. Sooner or later, telemedicine is believed to find itself as one of the universal treatments.

Key words
telemedicine, Medical Act, information and communications technology (ICT), electronic medical record (EMR)

Statutory ground
In order to facilitate the full-fledged development of telemedicine, a number of legal and institutional problems have to be settled. In terms of the law which allows telemedicine, Korea is more or less retarded in establishing the regulatory framework and promotional measures than foreign countries whose legislation of telemedicine took place around 1995.

In Korea, the Medical Act was amended for the first time to include such provisions as telemedicine (Article 34), electronic medical records (Article 23), electronic prescriptions (Article 17), etc. and the Act came into force on March 30, 2002. The Act was wholly amended as of April 2007 to modify hard-to-understand medical terms and provisions, and to delete bankruptcy from disqualification standards of a medical doctor. The current Act has come into force since April 29, 2012.

Characteristics of Telemedicine
Telemedicine is in common with the conventional medicine in that a physician treats a patient. However, telemedicine is basically differentiated in the followings: As a result, telemedicine is vulnerable in nature to medical malpractice. Accordingly, there must be some new theories and arguments in the formation of contract and torts. The discussion on the civil liability covers the above-mentioned issues, and would give an insight or guidelines in the concerted operation of provisions with respect to telemedicine. Some legal theories would be helpful to make telemedicine an ordinary treatment around the world.
 * The offer and acceptance of treatment and medication are usually made on-line;
 * Telemedicine is inherently dangerous because a physician cannot meet face-to-face with a patient; and
 * Joint and several liability is borne by all the physicians involved in a telemedical consultation.

In this regard, in-depth study of the civil liability of physicians involved in telemedical consultations and treatments based upon the conventional malpractice theory is in great need.

Types of Telemedicine
The relevant provisions of the Medical Act illustrates the now available types of telemedicine and the resultant legal aspects of doctor-patient relationship.

Article 34 of the Medical Act provides for three legal requirements, i.e., qualification, facilities and practices in respect of telemedicine. However, there are four types of doctor-patient relationship in telemedicine as follows:
 * Type 1: consulting specialist, physician or hospital vs. referring physician or hospital;
 * Type 2: consulting specialist, physician or hospital vs. referring medical care-taker (e.g., nurse, paramedic);
 * Type 3: consulting specialist, physician, hospital or medical care-taker vs. patient at a remote place; and
 * Type 4: Cyber-hospital and the Internet portal service specialized in medical information.

The current Act acknowledges only Types 1 and 2 on condition that participants must obtain the local license to do practice. Types 3 and 4 are not yet legalized.

Medical Malpractice at issue
There are two facets of medical malpractice - breach-of-contract liability and torts.

It is concerned about physician's duty of care and obligation of explanation, patient's informed consent, the scope of causation, burden of proof, the examination of IT specialists, and so on.

Legislative Proposal
What is the proper interpretation and possible legislation regarding the basic provisions of the Medical Act with respect to telemedicine?

In particular, Paragraphs 3 and 4 Article 34 of the Act are thoroughly examined and analysed. For example, Paragraph 3 Article 34 declares that a telemedical physician has an identical responsibility as the doctor who consults a patient on a face-to-face basis. Paragraph 4 of the same Article says that a consulting specialist is primarily responsible for negligent practice when local treatment or medication is provided by qualified doctors or nurses based upon the consultation with the consulting specialist. If the fault is not evidently on the side of the specialist, the referring doctors are responsible for the malpractice. Based upon the above analysis, some legislative proposals may be made so as to enhance the status of telemedicine. It is because the newly amended Medical Act cannot provide sufficient bases to ever-increasing needs for telemedical services in line with the state-of-the-art information technology.

So it is necessary to establish a special act with definite and detailed provisions including, but not limited to, the scope of telemedicine, qualification of consulting physicians, appropriate equipment and facilities required for telemedicine, the reasonable level of medical charges, data protection of telemedical records and confidentiality, informed consent of patients, requirements for cyber-hospitals, and jurisdiction, and so on.