for their diagnosis must ensure their reliability

A doctor, was he a specialist, is empowered to establish a remote diagnosis Today, the technology permits. And the Bill hospital, patients, health and territories, currently under discussion in Parliament, which aims to improve the distribution of the provision of care in France, should generalize the practice.

Dubbed "télé-expertise", this method does not require the physical presence of the patient. Dr. Jacques Lucas, Vice President of the national Council of the College of physicians, defines télé-expertise as "an Exchange remotely between two or more physicians, who will stop together a diagnosis or a treatment on the basis of images and medical data transmitted by electronic means". It is quite legal when it meets the medical code of ethics, but even more than other remote telemedicine practices, télé-expertise installation with acuity the question of the responsibility among practitioners who cooperate in the medical Act, diagnostic errors. Who will be responsible for harm to the patient The doctor who requested the opinion of the brother The expert consulted remotely Two practitioners

In the case of medical collaboration, "the use of images and biological data digitized and the intervention of third party technology as télé-expertise systems providers contribute to create a unique legal situation", recognizes Sabrina Burgat, lawyer at the Institute of the right to health of the University of Neuchâtel. Through an amendment to article 21, the hospital, patients, health and Territories Bill should specify the applicable liability regime. White paper on telemedicine, directed by the national Council of the College of physicians, and the report on "the role of telemedicine in the Organization of care", both published in January, have already dealt with the issue.

The case by case basis

First of all, physicians who use instruments of investigation (scanner, MRI...) for their diagnosis must ensure their reliability. Since a decision of the Court of cassation, in November 1999, the authorities indeed to doctors and radiologists, a duty of security-result (which is not unique to the telemedicine). Moreover, when there is loss or deterioration of medical images transmitted by the fault of the software vendors, medical equipment manufacturers, or even operators of telecommunications conveying data, physician whose responsibility is in issue may turn against the professionals concerned, on the basis of the liability for defective products (article 1386-1 of the civil Code) or contractual liability.

As the responsibility of the expert who carried out remote diagnosis, it should be fixed on a case by case basis by the courts. "It is moving towards original situations of co-responsibility between the stakeholders," concludes Dr. Lucas. Rest, diagnosis, the existing case law imposes to physicians as an obligation of means (in contrast to radiologists). For the time being, there is not in France of "sinister said concerning the télé-expertise", said Catherine Lamblot, Director of the medical insurance of the MACSF, which guarantees the responsibility of health professionals. But one can imagine a dispute between patient and télé-expert on the delay in the consideration of a pulmonary scanner or image interpretation error. The conventional rules of liability will apply to this case and the admissibility of an action in tort brought by the injured patient is little doubt.

"The télé-expertise no doubt reinforces the duty of vigilance of the specialist," anticipating Catherine Lamblot. Is it to say that he has an obligation to examine real-time images remotely The case law will probably be to pronounce on this last point. Note that, in Switzerland, several cases of télé-expertise is are solved recently by an amicable agreement between patient and the expert consulted remotely. "The path of negotiation through civil liability insurers allows to avoid any publicity to the case," said Sabrina Burgat. To reduce litigation, the national Council of the College of physicians recommends the establishment of protocols specifying the obligations of practitioners and technical service providers concerned, and the modalities of their cooperation. Proposals consistent with the communication of the European Commission on November 8, 2008, which recommends to the States to provide new legal strategies on telemedicine by 2011.