Brooklyn Law Review


Kate Nelson


Although the growth and acceptance of technological advances in the medical field have been rapid, the legal system has neglected to adjust its laws accordingly. Perhaps the most significant innovation is telemedicine, which allows a patient and a doctor, miles away from each other, to form a medical relationship across state lines. Yet, the traditional state-by-state physician licensing scheme, which promotes a medical relationship within just one state, remains the governing law. Consequently, many citizens––especially those residing in rural areas––continue to suffer from lack of health care access due to physician shortages within their state borders. Accordingly, this note critically scrutinizes the traditional in-state medical licensure system imposed by the states and urges for a novel, federal approach to physician licensing, specifically within the telemedicine industry. Recognizing that the states have an interest in protecting citizens residing within their state borders, including both physicians and patients, this note pegs congressional authority under the Fourteenth Amendment, objectively seeking recognition of a fundamental right to receive and to deliver health care. Theorizing the establishment of such a fundamental right, the current in-state licensure system––as applied to the use of telemedicine––would not pass stringent constitutional review. As a result, this note confers that the least burdensome and narrowly tailored approach to receive and render telemedicine services rests within Congress’s enumerated powers. From a utilitarian perspective, this note suggests supplementing the current in-state medical licensing system with a two-fold federal telemedical licensing system, concurrently regulated and overseen by the Federal Trade Commission and Food & Drug Administration.