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Minimizing Telemedicine Malpractice Risk

When it comes to telemedicine malpractice risk, the consensus is that telemedicine puts a clinician at a lower malpractice risk than practicing face-to-face medicine. Despite the exponential growth of telemedicine there appears to be a minimal uptick in malpractice claims.

In general, good documentation practices will decrease your malpractice risk quite a bit.

Several factors contribute to the lower telemedicine malpractice risk:

  1. lower patient acuity
  2. fewer lawyers wanting to take on telemedicine cases
  3. more claims being settled instead of going to trial

There are lawyers out there who advertise to be experts at suing telemedicine physicians. Obviously they are recognizing this new niche. But it’s still an untapped market.

The main issue is that it’s tough to convince a jury that the patient-doctor interaction can be held to the same standard as a F2F visit. It’s assumed by any borderline rational individual that if a doctor cannot do an exam on you and you aren’t in their office then the nature of the visit is different -and limited.

Telemedicine companies are taking steps to make sure that patients understand this. After all, the point is to provide patients with easier access to health care without replacing the F2F visit. In this post I’ll discuss several ways you can your exposure to telemedicine malpractice risk.

Telemedicine Isn’t Efficiently Regulated

Unfortunately there isn’t a unified consensus as to what the standards of telecare should be. It’s still being regulated on a local level by some state medical boards but almost no laws have been passed that can set a specific standard.

There are some “guidelines” as of this writing (2017) but not much else. These guidelines are recommended by independent telehealth companies which are involved in researching this field and they consult for large medical groups which want to establish telemedicine.

telemedicine malpractice risk

Even though CMS is reimbursing healthcare providers for services rendered to Medicare and Medicaid patients, they haven’t established uniform rules across the US.

Telemedicine/Telehealth

Whether it’s referred to as telemedicine or telehealth, we’ve been communicating electronically with patients for decades. It’s just now that we’re able to do much more for them and will therefore be held to higher standards.

In the past I would take a call from a patient as a resident overnight but didn’t have to document anything unless I prescribed a medication or ordered a medical device.

Now we communicate with patients by email, telephone, text, and synchronous video appointments. Something as simple as your internet connection speed can come into question if you’re a teleradiologist or telepathologist. It’s definitely an evolving medical and legal field.

Avoiding Medical Board Investigations

Medical malpractice by definition is improper, illegal, or negligent medical care dispensed by a person in a professional medical role. Just because you didn’t directly put the patient’s health at risk, that doesn’t mean that you are in the clear.

Your state and your medical board can still come after you if you did something they aren’t happy with. It’s that much harder to comply with medical board rules as they are ever-changing in the telemedicine scene.

Some states require you to perform your initial visit with a patient by video. If you fail to do so and you then prescribe a medication then that state will assume that you never established a proper patient-doctor relationship.

Some states also require that you obtain either verbal or written consent from a patient before performing a telemedicine visit. If you fail to do so then your medical board can investigate you for disobeying the rules they established.

Where Is Treatment Being Rendered?

Here is an interesting problem which is springing up more and more. Imagine you are a telemedicine doctor licensed in California and are away in Texas for a medical conference and virtually seeing a patient who is a California resident who is vacationing in Florida.

What a legal nightmare.

Just because a pharmacy will let me call a medication in that doesn’t mean that I am allowed to do so. I may not have a medical license in Texas but the pharmacy will allow me to prescribe nitrofurantoin for a Texas patient with a UTI. If the Texas medical board or my California medical board decided to get me into trouble over this then they could.

A California patient who happens to be traveling in NY may need her metoprolol refilled there. Even if a NY pharmacy allows me to call in a few days to hold the patient over, the NY medical board may file charges against me for prescribing in their state without a NY medical license. At the very least they could say that I didn’t follow their state rules in regards to performing a telemedicine visit.

Some states have reciprocity agreements when it comes to certain prescriptions and when it comes to doing telemedicine. It’s only a handful of states who have taken this initiative.

Multi-State Licensing

Crossing state lines digitally as a healthcare professional poses a high telemedicine malpractice risk. Even though it’s still unlikely that you are going to get in trouble for it, it’s best to work with a telemedicine group which has spent sufficient time researching the laws.

In fact, few states have actual “laws” relating to telemedicine. They have “statements” or “positions” which are published by their respective medical board but that’s about it.

Some states will require that the healthcare provider have passed a criminal background check before seeing patients in their state. They may not even require that healthcare professional to be licensed there.

Minimize Your Telemedicine Malpractice Risk

Contact your medical malpractice carrier and let them know that you will be doing telemedicine. Then find out what your coverage is for this service. Most will offer you the same exact coverage as when you do F2F visits.

If you are new to telemedicine then I would suggest checking out your malpractice carrier’s resources. Some companies offer you free CME’s if you read through their resources directed at helping you lower your telemedicine malpractice risk.

Know your state’s laws regarding telemedicine or telehealth or whatever they call it.  The Center For Connected Health Policy has a helpful interactive page which lists all pertinent telemedicine laws/regulations for each state.

Obtain informed consent

Some states require that you obtain informed consent. Either you will need to obtain a verbal one or a written one. Either way, you would need to document in your chart that you obtained such consent in order to decrease your telemedicine malpractice risk.

The Doctor’s Company has really useful information on their site. Follow the link I provided to view their sample telemedicine consent forms.

Patient Identity Fraud

It’s on you, the clinician, to make sure that the patient is who they claim to be. You have to take certain steps to demonstrate that you at least tried to verify that the person is who they said they were.

For most states it’s adequate to have a written blurb that you confirmed the patient’s DOB and name and their location within the US.

Another growing problem is treating minors via telemedicine without getting the proper guardian’s permission. The minor could lie about their age in order to get an STD treatment or birth control medications.

Work With A Competent Telemedicine Group

I have interviewed with quite a few telemedicine companies and some stand out more than others. The following companies go above and beyond to make sure that their clinicians comply with each state’s regulations:

  • American Well
  • Teladoc
  • Doctors On Demand

The following companies might be doing everything right but I have less faith in their legal team’s research of individual state laws:

Cyber Liability

Last year 90% of healthcare organization experienced data breaches and 45% experienced multiple breaches.

When it comes to telemedicine and risk, it’s far more likely to have a data breach go to court than a patient management case.

When you engage in a digital communication with a patient, you are tasked with securing the information which is transmitted to you.

It’s on you to make sure that nobody is in the room with you who could overhear confidential patient data. You also need to protect the data being transmitted from your computer to the patient’s and vice versa.

You will also be responsible if your system is hacked and ransomware installed. Such software intrusions can then hold patient data hostage until you pay the attacker some money – often in form of bitcoins.

Third Party Vendors

Cyber security risk may not always stem from you or the software designer. You may transmit sensitive patient data to an outside facility such as a pharmacy, a data security consultant, billing company, or a specialist’s office in the form of a referral.

If these 3rd party vendors aren’t careful they could introduce malware into your system or they could mishandle the information which you transmitted to them.

Will you be held liable? Who knows. But you most certainly will be mentioned in any lawsuit which means having to get a lawyer, showing up to investigation hearings, and losing time from work and your personal life.

Is Telemedicine Insurance More Expensive?

You won’t pay extra to be covered for your telemedicine interactions with your patients. Most of the big-name malpractice carriers will include a telemedicine rider at no extra charge.

However, you may not be covered or covered for a very small amount when it comes to cyber related theft. Unfortunately, since you don’t design the software and aren’t responsible for updating it, you are at a bigger risk of such liability.

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