Commentary

Telemedicine and the potential for liability


 

References

The development of an electronic health care system has revolutionized the way in which patients receive medical treatment. Every physician in practice is familiar with how EHRs have changed the way we record and retrieve information and even interact with patients.

Many of us are just beginning to become aware of a new trend: telemedicine. Proponents of telemedicine believe that it will give patients increased ease of access to trained health care professionals at low cost and skeptics feel that the quality of care will be low without either a physical exam or an ongoing relationship to help guide care. One thing, unfortunately, is for certain, with the evolution of health care comes the evolution of health care litigation. Physicians who are considering seeing patients through a telemedicine service should be aware of liability issues that may arise when seeing patients without actually seeing patients.

Dr. Neil Skolnik

Dr. Neil Skolnik

In 2009, Congress enacted the Health Information Technology for Economic and Clinical Health (HITECH) Act to develop a national health care infrastructure fueled by modern technology. In addition to offering health care providers financial incentives to replace patient medical charts with EHRs, leading over 400,000 health care providers to participate in the Medicaid and Medicare incentive programs, the HITECH Act also has encouraged the advancement of telemedicine through the use of virtual visits and electronic doctor/patient communication.

Telemedicine allows physicians and patients to exchange health information through telecommunication technologies while in different geographic locations (Model policy for appropriate use of telemedicine technologies in the practice of medicine, Federation of State Medical Boards, April 2014). Telemedicine emerged in the 1960s after NASA funded early research to allow astronauts to communicate with physicians while traveling in space. In recent years, telemedical practice has evolved into a much more practical and convenient method of practicing medicine.

Virtual visits now allow a patient to use a computer or other videoconference device to have a virtual visit with a doctor in lieu of having an in-person physical examination. Jason Gorevic, CEO of Teladoc, a leading telemedicine company, expects Teladoc to conduct a half a million telemedicine visits in 2015 (“Video visits, telemedicine today are like retail clinics were in the 1990s,” mobihealthnews, Nov. 4, 2014). The increase in the use of virtual visits comes largely from the high use of telemedicine in rural areas, where long distances exists between a patient and his/her physician.

Telemedicine has expanded rapidly, and state licensure requirements and regulation of telemedicine have not caught up with its use, leading regulations to vary from state to state. In an attempt to eliminate the state regulation disparities, the Federation of State Medical Boards (FSMB) has provided a framework for standards of care in regulating the practice of telemedicine, but each state still has its own requirements for telemedical practice (50 State Telemedicine Gaps Analysis: Physician Practice Standards and Licensure, American Telemedicine Association, September 2014).

Only nine states offer a conditional or telemedicine license that allows out-of-state physicians to practice telemedicine, and Maryland, New York, and Virginia are the only states that offer reciprocity to licensed physicians in bordering states. In California, a Colorado doctor was criminally prosecuted for prescribing medication via the web to a patient in California (Hageseth v. Superior Court). The California Court of Appeals found that jurisdiction was proper in California because the doctor willfully practiced medicine in that state by agreeing to prescribe medication to a California resident online.

Physicians also should be aware of the need to obtain informed consent from the patient before conducting any telemedicine visit or examination. Most states require a physician to obtain written or verbal informed consent from a telehealth patient. Although research is slowly establishing the reliability of telemedicine, there are inherent risks associated with receiving a consultation via telecommunication of which a patient should be aware, such as the limits of the evaluation given that a complete physical exam cannot be performed. The physician should inform the patient when the visit is being recorded and receive his/her consent before proceeding.

The physician also should be very careful when selecting telemedical technology to ensure that the technology is HIPAA/HITECH certified and permitted under the state regulations in the state in which the doctor is practicing. In Oklahoma, a physician was sanctioned by the state’s medical board for conducting a virtual visit via Skype. (“Oklahoma state medical board adopts policy following Skype case,” The Oklahoman, Sept. 25, 2013). Although Oklahoma permits the use of virtual visits, the state prohibits a physician from conducting these visits via Skype. The Oklahoma doctor turned out to not be subject to a HIPAA violation because the Skype website is encrypted.

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