Stay Vigilant About Malpractice Risks with Telemedicine
The dramatic increase in the use of telemedicine is raising concerns about the potential for malpractice issues related to this form of caregiving, with some experts cautioning a wave of lawsuits could be on the way.
Adherence to key principles of patient safety and risk management can reduce the risk.
Few lawsuits focused specifically on care delivered by telemedicine have been filed, and some attorneys are surprised, says Tom Davis, MD, FAAFP, a practicing physician, consultant, and expert witness in St. Louis. There always is a delay after new technology is widely adopted, but some legal experts expected more lawsuits by now, he says. It may only be the lull before the storm.
The consensus in the legal community is the delay is simply because the liability attorneys do not know how to value these claims, Davis says. Plaintiff’s attorneys appear to be holding on to complaints until they can determine valuations, but that is not an indicator that telemedicine has been unusually free of medical malpractice allegations.
“When one or two brave souls file claims, their peers can look at that and see how to value these cases, and then it will be a flood of cases coming. Attorneys hear people say it appears there has not been much actionable related to telemedicine, and they chuckle at that because they think it is going to be the alpha and omega of tsunamis once the claims start,” Davis says. “Don’t take the lack of filings as being reassuring in any sense. It’s a new thing, and once they come, boy, are they going to come.”
Failure to Diagnose
Failure to diagnose will be one of the most likely allegations, Davis predicts. Healthcare organizations should be extremely conservative in how they use telemedicine and resist encouragement from the business office to maximize patient volume through the technology.
By its nature, telemedicine allows for much less meaningful interaction with and assessment of the patient, Davis says. What might be immediately obvious in a traditional office visit might go overlooked or require much more inquiry through telemedicine. For that reason, Davis’ threshold for telling a patient to go to urgent care or call 911 during a telemedicine encounter is much lower.
“The telemedicine services don’t like it because they like to advertise that you can get the same care through telemedicine as you can get in person, which we all know is a lie,” Davis says. “When a patient gives you a symptom that is even the least bit concerning, they have to have an in-person visit — automatically, no question. That’s just about patient safety.”
The lack of sensory feedback with telemedicine could increase the risk of failure to diagnose, says Christopher J. Ryan, JD, an attorney with Dickinson Wright in Ann Arbor, MI.
“The provider is not able to palpate an area to recreate pain, for instance, and that is an important diagnostic tool in some cases. That could lead to a failure to diagnose,” Ryan says. “If the provider gets the sense that they could get a more complete picture by bringing patient in, they should do that. There should not be any hesitation because it is inconvenient.”
Ryan agrees an increase in telemedicine malpractice cases is on the way, and urges risk managers to review policies and procedures that can mitigate the risk.
“It wouldn’t hurt to include documentation on why the provider felt that telemedicine was appropriate for this visit,” Ryan says. “It could be a good risk management approach to have the provider attest to why this particular patient and type of care is appropriate and safe with this technology. That may include the risks of having the patient come into a facility during a pandemic, or other risks associated with a physical visit.”
Telemedicine also will play into one truism about why patients sue. It is well known patients are less likely to sue doctors with whom they feel they have a relationship and who care about their welfare, and more likely to sue those they do not know and who seem indifferent.
“It’s much more difficult to communicate empathy, compassion, that you’re a nice person through an iPhone screen than it is in person,” Davis says. “When you see me in person, I’m going to give you a fist bump or a handshake, chat with you, ask about your family — all of which makes our encounter less efficient but much better overall. There are ways to make up for that in telemedicine, but the physician has to be taught that. I have yet to find a health system that is interested in engaging their clinicians in the right way about that.”
Larry Hansard, MSM, area director for the healthcare practice of Gallagher, a commercial risk management and insurance brokerage in Washington, DC, confirms he has seen few malpractice claims related to telemedicine. In the past six years, his company has provided telemedicine insurance coverage for more than 70 clients, including some of the largest telemedicine providers, accounting for millions of telemedicine visits every year.
“In that time, I have seen one paid malpractice claim. Frankly, it was kind of an anomaly,” Hansard says. “It was a therapist who used some bad judgment and got involved with a patient. It had very little to do with telemedicine, and all about a very misguided individual.”
However, insurance carriers are reporting an uptick in claims. Hansard believes the difference is his clients are mostly referred by law firms specializing in telemedicine, and the healthcare providers use top-notch risk management controls for their telemedicine operations.
It is likely the number of cases of patient regulatory complaints and medical malpractice allegations that involve this type of care will increase, says Katea M. Ravega, JD, partner with Quarles & Brady in Indianapolis.
Ravega advises focusing on these mitigation tactics:
- Ensure accurate and complete medical records for each telemedicine visit. In addition to complying with the laws about recordkeeping, ensuring a correct and thorough record of the encounter can help support the basis for the provider’s care decisions.
- Stay current on changes in standard of care, diagnostic tools, and exam methods using telemedicine technologies. This area of law and practice is changing rapidly, and clinicians are frequently innovating new ways to examine patients remotely. In addition, Ravega says, restrictions on conditions that can be treated via telemedicine, requirements related to mode of technology or establishment of valid provider-patient relationships also evolve from time to time.
- Continue to provide the same high-quality care via telemedicine that would be provided in person, including recommending patients go for an in-person visit when it is called for, and document those recommendations.
- Maintain all required licenses for the healthcare providers, and establish to prevent anyone from accidentally engaging in unlicensed practice.
- Monitor enforcement actions, settlements, and legal changes in the states where patients are located to ensure adjustments are made to comply with new requirements over time.
- Incorporate telemedicine compliance tactics into the overall compliance program, including policies and procedures, training, and internal auditing and monitoring processes.
“An additional item that is sometimes overlooked when providers initially begin to provide care via telemedicine is to review the insurance policies to ensure that the malpractice coverage includes care provided via telemedicine,” Ravega says. “Depending on the specifics of the policies that are in place, additional insurance or other adjustments may be needed.”
HIPAA Concerns
As the pandemic abates, telehealthcare may recede as well, but it is unlikely to return to pre-pandemic levels as both providers and patients have enjoyed its convenience, says Christopher Tellner, JD, partner with Kaufman Dolowich Voluck in Blue Bell, PA.
While this area of the law is in its infancy, there are several established principles of which healthcare providers and patients should be aware. Telemedicine technology must be compliant with HIPAA, state-based laws regarding health information, and informed consent requirements, Tellner notes.
Regarding telemedicine, the threat of a HIPAA violation may be heightened due to the threat of hacking or impermissible third parties eavesdropping on a telemedicine visit.
“While a provider’s responsibilities under HIPAA do not change generally when engaging in the practice of telemedicine, certain aspects of HIPAA have been relaxed during the COVID-19 pandemic, particularly the security rule requirement that the telecommunication platform used meet certain technical security requirements,” Tellner says. “This relaxed standard should not be expected to last, and providers should be cognizant of whether the platforms they use satisfy HIPAA.”
The doctrine of informed consent was first recognized as the patient’s right to control the healthcare he or she received. The doctrine has since been extended to include the patient’s right to control his or her health information, Tellner says. Over the years, several elements have been held to encompass a patient’s informed consent.
“The patient must have the capacity to make decisions on their own behalf, which includes the mental capacity to understand the decision the patient is making. A patient must be given sufficient information that would enable a reasonable patient to understand the decision the patient must make, and to understand the possible consequences of that decision,” Tellner explains. “Due to the less formal nature of telemedicine, informed consent may be overlooked during the provision of telemedicine. However, informed consent requirements are no less stringent when providing virtual care than in the provision of in-person care, and cannot be overlooked.”
State Lines May Complicate
Every healthcare practitioner is governed by a state licensing board and is subject to state licensing guidelines, notes Abbye Alexander, JD, partner with Kaufman Dolowich Voluck in Orlando. A major, unclear legal issue courts nationwide are grappling with is the effect of a health practitioner’s provision of remote care and on the standard of care applicable to that particular practitioner.
Practitioners may be located in different states than patients. There will be different malpractice laws, standards of care, immunity provisions, statutes of limitations, or damage limitations in the practitioner’s state than the states in which their patients are receiving the virtual care.
“This issue becomes more complicated by the common exclusion in malpractice insurance policies regarding unlicensed activities engaged in by the practitioner, which could be implicated if the practitioner is engaging in a practice within the scope of his or her license in the state they are providing care, but the location where the patient is receiving care is outside the scope of the practitioner’s license,” Alexander says. “We can anticipate an increase of litigation in this area. Litigation that arises in this area should be monitored.”
Practitioners should understand the geographic scope of their patients to better ensure the care provided is permissible across jurisdictional lines.
“Malpractice concerns can have serious, disastrous impacts on providers and patients alike. This fact has not changed in light of the shift toward telemedicine, but telemedicine poses different malpractice dynamics than the in-person provision of care,” Alexander says. “Health providers should discuss malpractice concerns specific to telemedicine with legal counsel and malpractice insurance carriers to ensure compliance with evolving regulations and standards of care, and to ensure coverage in the event of a telemedicine malpractice incident.”
Determining the standard of care becomes complicated in telemedicine cases because of the jurisdictional issues and due to the more limited nature of care offered by telemedicine, says Henry Norwood, JD, attorney with Kaufman Dolowich Voluck in Orlando. A practitioner likely cannot provide the same level of care via telemedicine they could by physically examining a patient.
“This would suggest that the standard of care provided to the patient is lower and the burden is higher on the practitioner to show that the proper standard of care was met, and will likely result in an increase of malpractice lawsuits,” Norwood says.
The American Medical Association (AMA) has issued guidance on the standard of care to which practitioners should hold themselves in the practice of telemedicine.1
“This guidance, while not conclusive on the legal issue of the standard of care applicable to telemedicine malpractice cases, may be relied on as persuasive authority in the area,” he says.
Norwood offers this summary of the key recommendations in the AMA telemedicine guidance:
- Inform patients about the limitations of the patient-provider relationship and the services the provider can competently provide via the telemedicine platform.
- Advise patients how to arrange for follow-up care, if necessary.
- Encourage patients to inform their primary care providers of the patients’ virtual visits.
- Providers engaging in virtual care must hold themselves to the same professional standards applicable to the provision of in-person care.
- Providers must recognize and actively take efforts to overcome the limitations of telehealth technology in the course of the care they are providing, such that any deviation of care between telehealth care and in-person care is diminished.
- Providers must be proficient in the technical aspects of the platforms they use.
- The same standards apply equally to providers engaged in the prescription of medications.
- Informed consent should be tailored to the patient-provider interaction, considering the telehealth nature of the interaction.
Additional guidance from the AMA and other professional organizations likely will be issued as telehealth remains a primary form of care in the years to come, Norwood says. A practical understanding of this guidance can aid practitioners to avoid malpractice concerns in the course of their practice.
Ensure Tech Is in Order
On the issue of misdiagnosis in telehealth, it is best that healthcare providers ensure their receiving equipment is fully functioning so there are no complications, glitches, or sound or picture barriers to their telehealth visit, says Savera Sandhu, JD, partner with Newmeyer Dillion in Las Vegas. A best practice is to use secure technology with historically successful communication, picture, and recordkeeping.
Some healthcare providers have used common FaceTime or video chat platforms due to limited regulatory measures during COVID-19, but that may lead to insufficiencies and liability.
“Another recommendation is that a second person is with the provider, such as a nurse, a physician assistant, or a resident. That way, there are two sets of eyes and ears to confirm the medical issues and recommend a treatment path,” Sandhu says. “It is always good to repeat the patient’s comments, confirm the accuracy of their complaint, and record them. In the world of oncology, diagnosing cancer is critical, so a recommendation for an in-person visit should be given if there is even the slightest chance of a potential cancer concern.”
REFERENCE
- American Medical Association. Ethical practices in telemedicine.
SOURCES
- Abbye Alexander, JD, Partner, Kaufman Dolowich Voluck, Orlando. Phone: (407) 789-1230. Email: [email protected].
- Tom Davis, MD, FAAFP, Tom Davis Consulting, St. Louis. Phone: (636) 667-6325. Email: [email protected].
- Larry Hansard, Area Director, Healthcare Practice, Gallagher, Washington, DC. Phone: (202) 312-6979. Email: [email protected].
- Henry Norwood, JD, Attorney, Kaufman Dolowich Voluck, Orlando. Phone: (407) 789-0230. Email: [email protected].
- Katea M. Ravega, JD, Partner, Quarles & Brady, Indianapolis. Phone: (317) 399-2849. Email: [email protected].
- Christopher J. Ryan, JD, Dickinson Wright, Ann Arbor, MI. Phone: (734)-623-1907. Email: [email protected].
- Savera Sandhu, JD, Partner, Newmeyer Dillion, Las Vegas. Phone: (702) 777-7513. Email: [email protected].
- Christopher Tellner, JD, Partner, Kaufman Dolowich Voluck, Blue Bell, PA. Phone: (215) 461-1100. Email: [email protected].
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