More than three-fourths of hospitals are currently using or implementing telehealth, according to the American Hospital Association. This rapid-fire spread of utilization in acute settings is in part attributed to telemedicine’s capacity for improved quality of care, patient outcomes, and cost efficiencies. Despite its advantages, telemedicine comes with liability risks. As telemedicine continues to push new boundaries of healthcare at an impressive rate, more and more is written about specific legal risks when using virtual care: privacy, security, patient confidentiality, credentialing, professional licensure portability, etc.
Physicians considering adding telemedicine to their practice must understand the applicable legal limits, as well as critical ways to minimize their risk.
Standard of care
Telemedicine is still medicine. The same standard of care applies for virtual encounters as for traditional in-person delivery. Just practice good medicine, plain and simple.
Liability coverage
Does your liability carrier cover you for telemedicine practice? Many exclude coverage for telemedicine services, so checking with your medical malpractice provider regarding telemedicine coverage is crucial when considering a telemedicine practice.
Licensure
The regulatory landscape for practicing telemedicine across state lines is challenging, to say the least. For starters, the laws governing the provision of telemedicine services vary widely state-to-state. Healthcare providers are generally required to be licensed in the state in which the patient is receiving services. Some states offer a special license for the provision of certain types of telemedicine services, while other states allow for limited consultations by out-of-state practitioners without licensure. It is the responsibility of the practitioner to know (and adhere) to the applicable rules; but, to add to the confusion, there is no one consistent place to find these rules.
In evaluating the telemedicine licensure requirements per state, healthcare providers must carefully consider the nature and frequency of the services they will provide, as well as the time and expense of licensure in multiple states.
Patient relationship
The importance of a positive patient-physician relationship is undeniable. Virtual care providers must consciously work to develop a strong relationship with patients. In a digital environment, this translates to strong communication skills, in other words being a good listener and answering all the patient’s questions and concerns as well as or better than in an inpatient environment. It also means ensuring the patient understands the symptoms or treatment options discussed. Strong communication and web-side manner are essential in overcoming the artificiality of not being physically in the room.
It is important to note that the physician’s [virtual] presence in the room is not the only one who incurs liability risk. Hospitals and emergency rooms offering telemedicine services can also minimize their risk by way of a few key considerations.
Open, clear communication
Hospitals and Emergency Departments (ED) must hold open, transparent communications with their telemedicine providers. The hospital must be very clear with the teleprovider about the information the provider will and will not able to see as it relates to the patient, whether it’s information, circumstances, or background. A virtual physician must have access to all relevant data to make informed decisions for care.
Partners in care
A hospital or ED must view itself and act in partnership with telemedicine providers. It is commonplace for physicians to consult with each other, exchange information relating to a specific case, or even disagree on a diagnosis. But what happens when the care provider(s) in the room disagree with the direction of the clinician on the screen, while the patient witnesses the exchange? In a live environment, the team would likely step out of the room and discuss. Likewise, hospitals using telemedicine must employ a mechanism for addressing any concerns or disagreement about the management of patients in a professional, efficient and collaborative manner.
Documentation
As medical providers, one of the most essential practices that should always hold is proper documentation. Documentation becomes even more crucial in acute telemedicine, and for all providers involved, from the ED to the on-screen physician. Consult documentation must include everything from information known about the patient to a detailed explanation of decision making. If applicable, the documentation should also indicate the patient understood the information provided during the consent process before receiving any telemedicine services.
One of the most common uses of acute telemedicine today is also the clearest example of the above considerations in practice — the management of stroke care and the administration of tissue plasminogen activator, or tPA. That entails open communication and team decision-making between all providers involved, the patient, and the patient’s family. And, as with most life-or-death medical scenarios, it also involves risk. By practicing good medicine, open communication, collaboration and, of course, proper documentation, hospitals, and telemedicine providers can work together to improve outcomes while minimizing risk.
