Telehealth: Steps facilities, insurers, & practitioners can take to protect against legal risk
In this third--and final--installment of the Telehealth series, drawing on the Telehealth landscape discussed in the prior posts, and considering the unique challenges that arise as a result of increasing utilization of telehealth, below are some practical suggestions for facilities, insurers and practitioners, as well as issues for attorneys to ponder.
Given the overall continuous upward trend in numbers of initiated medical malpractice claims, it is likely that the number of telehealth-related malpractice claims will also start to rise. It is not unreasonable to anticipate that any telemedicine specialty that runs a risk of failure to diagnose a serious disease coupled with the probable lack of a longstanding provider-patient relationship could lead to increased liability losses. Specifically, cardiovascular disease, chronic disease management and oncology tend to include high severity cases that have higher incidences of negative patient outcomes, which could lead to increased liability.
The following represents a number of suggestions for facilities, insurers, and practitioners, as well as issues for attorneys to ponder, surrounding telemedicine:
Increase education regarding the resources available to support and encourage telemedicine development, including the existence of policies and protocols for telehealth, which should be easily accessible to health care providers;
Require doctors to have a pre-existing relationship with a patient in order to engage in online prescribing;
Require a face-to-face physical exam prior to online prescribing [Note that Idaho is one of two states with still existing restrictions on phone-call-only telemedicine. Many states also have telemedicine requirements related to patient medical history, written documentation, follow-up care, and emergency provisions. It is not advisable to prescribe medications based only on a patient’s answers to an online questionnaire or survey.];
Take notes and keep records in such a way that practitioners can easily demonstrate that they established an appropriate relationship with the patient, that they were able to adequately assess the patient, and that the patient provided them with an accurate health history.
Ensure the informed consent procedure includes: the names, credentials, and locations of every involved healthcare provider; the names, credentials, and locations of any other staff that may help facilitate the telehealth service; and descriptions of every telehealth service that will be performed and the technology that will be used;
Implementation of residency training on telemedicine best practices, as well as graduate and postgraduate medical education for doctors and nurses: medical and nursing schools would be wise to develop comprehensive curricula including lecture series, clinical clerkships and rotations so that upcoming health care providers are well educated on how to incorporate telemedicine into their clinical practices;
Physicians must decide ahead of time which conditions they are comfortable treating remotely. Many malpractice carriers will cover treatment providers for potential liability so long as the provider is practicing within the scope of their license. Additionally, providers would also be prudent to have a plan as to when they would require in-person visits, and have a process set for when and how to escalate treatment to a face-to-face visit.
Given provider shortages throughout the U.S., in both rural and urban areas, telemedicine has a unique capacity to increase and improve service to millions of new patients. With a little foresight and planning, the severity and complexity of legal issues of telehealth cases may be reduced.
 Face-to-face exam does not implicate an in-person exam. Texas was the last state to require that the patient-physician relationship be established with an in-person examination before a telemedicine visit.
Center for Telehealth & e-Health Law (CTeL): www.ctel.org
The American Telemedicine Association: www.americantelemed.org;
The Telehealth Resource Centers: http://www.telehealthresourcecenter.org/legal-regulatory.