At its most basic level, telemedicine is not a distinct form of medical practice but merely the practice of medicine via a different modality. However, providers should consider the following in order to minimize their liability and legal risks in their practice of telemedicine.
First, potential telemedicine providers need to understand what legal limits apply. Many states impose requirements on the treatment of patients. Therefore, it is critical that providers understand all applicable legal limits.
Having established the parameters of the telemedicine practice, providers must also ensure that they hold the proper medical licenses.
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Because telemedicine permits the treating provider and the patient to be in different locations, and, in many instances, in different states, there is the question as to where the provider must be licensed in order to properly treat the patient via telemedicine. Although there are some efforts in Congress to allow a physician licensed in one state to treat a patient in another state, state laws generally require a physician treating a patient via telemedicine to be licensed by the medical board of the state where the patient resides.
The Interstate Medical Licensure Compact allows a physician licensed in one of the 11 compact states to become licensed in the other states through a streamlined process.
A telemedicine provider must conform to the standard of care applicable and equivalent to what is expected for in-person care as appropriate to the patient’s age and presenting condition.
Many times, in order to correctly diagnose and treat the patient, the telemedicine provider will need to use diagnostic testing, through the use of peripheral devices appropriate to the patient’s condition.
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There is still the question of which standard of care the telemedicine provider must meet. Typically, the provider would be held to the standard of care of the community where he or she practices. However, courts have increasingly recognized standards promulgated by associations such as the American Telemedicine Association as the appropriate standard of care for telemedicine encounters, even if it conflicts with the provider’s local standard of care.
Providers should also check their malpractice insurance coverage. Many providers assume incorrectly that their current professional liability insurance coverage will extend to cover their practice of telemedicine since it is an extension of their current medical practice. However, most professional liability insurance coverage will exclude coverage for telemedicine services. Providers should work with their insurance brokers to secure separate professional liability insurance coverage for telemedicine.
Providers should ensure that patients understand the risks, such as a power failure that could cause a loss of communication or a loss of records, and potential exposure of medical records to outside hackers. This discussion can minimize potential issues that may arise.
Paul D. Squire, JD, is a senior attorney at Garfunkel Wild, P.C., in Great Neck, New York, and former general counsel for Teladoc. Send technology questions to firstname.lastname@example.org.