Your risks when practicing telemedicine

January 18, 2008

Be prepared to defend your choice of telemedicine instead of seeing the patient in person.

Key Points

The legal standard of care is ever-evolving in response to new studies, articles, and technology. The law, however, typically lags behind medical advances. Telemedicine-in which consultative, diagnostic, and treatment services are provided via electronic communication-is a recent example of the law needing to play catch-up with new patient care techniques.

A few years ago an insurer asked me to evaluate whether a physician practicing teleradiology should be placed in a high-risk group. This doctor had good-quality films, many safeguards for double-checking his work, a protocol for conveying results, and good communication channels with referring physicians. I recommended that he be insured at regular rates because his practice was in fact safer than most standard radiology practices.

However, since any new development will by definition not conform to the traditional standards of care, you'll need to be ready to defend its use in the event of a legal proceeding. In the case of telemedicine, if a procedure results in a bad outcome and a lawsuit, medical experts-and perhaps a jury-are bound to ask you why you eschewed traditional hands-on treatment in favor of something less-widely used.

Licensure. Since telemedicine doctors often evaluate patients in numerous states, the question arises as to whether this constitutes practicing medicine in some states without a license. A few states provide a form of limited licensure specifically for telemedical practices, and national licensure may ultimately be an option. But for now, if you practice telemedicine you might need to obtain a license in every state in which you "see" patients. Ask your lawyer.

Conflicting laws. If your office is in one state and a patient who sues you lives in another, which state's laws will apply? Probably the laws of the state where the suit was filed. Still, the standard of care is now largely a national paradigm, given the wide dissemination of medical information and the growth of specialty programs. It will be interesting to see what happens when medical practice is international.

Malpractice insurance. If you're interested in dipping a toe in telemedicine, you need to make sure that your malpractice policy will cover medical events in other states. Traditional malpractice policies usually provide coverage for doctors whose practices border other states, but nothing beyond that.

One more caveat: Reimbursement may pose a problem if rates in your state and the referring state differ. Ask third-party payers about their requirements.

With any new technology, the risks can only be anticipated because there are few reported cases. But the risks associated with telemedicine are diminishing as techniques improve and legal precedents become established. Indeed, in rural areas where specialists aren't available but telemedicine is, primary care physicians should consider sending specialists X-rays, lab results, photos, or even live videos of examinations. Who knows? Before long, a plaintiff's attorney may demand, "Doctor, why did you diagnose and treat this condition yourself instead of using telemedical options with a known expert?"

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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