Telehealth: What is it, and what new challenges does it bring?
Telehealth, or the delivery of health -related care, services, education and information through telecommunications technology, is quickly and continually growing into a multi-billion-dollar industry. As its popularity and utilization grows, increasing numbers of medical malpractice claims are likely to arise, and will undoubtedly involve novel legal issues stemming from communication errors, misdiagnosis, prescribing medications, standard of care breaches, malpractice insurance coverage, physician licensing, and data breaches. Follow me for a 3-part series to learn more about (1) what telehealth really is and what new challenges and considerations it generates; (2) current legal precedent relating to medical malpractice claims involving telehealth; and (3) practical suggestions for facilities, insurers and practitioners that can help minimize legal risk.
What is Telehealth?
Telehealth, or the delivery of health-related care, services, education and information via telecommunications technology, which includes videoconferencing, remote monitoring, electronic consults, and wireless communications, is an already widespread practice that continues to grow among employers, patients, and hospitals. Telehealth and telemedicine are often used interchangeably, but telemedicine is a more specific term referring to clinical care delivered by a licensed health-care provider at one location to a patient at another site by means of health information and telecommunications technologies. From video-conferencing with patients in remote locations to monitoring ICU patients from centralized command centers, telemedicine is increasing patient access, improving quality of care, and lowering health care costs.
Telehealth has immense potential to increasingly promote better patient care and faster access to medical services. According to a fairly recent industry report, the global telemedicine market is expected to be a $35 billion industry by 2020, and an $86.7 billion-dollar industry by 2023. The American Telemedicine Association estimates a majority of hospitals now use some form of telemedicine, and the overall number of telemedicine video consultations is expected to increase to about 160 million by 2020—a 700 percent increase over a five-year period. Additionally, the Medicare Telehealth Parity Act of 2015 expanded telehealth coverage to Medicare beneficiaries to include both rural and urban areas, and to streamline the payment system.
Employers are also becoming increasingly onboard with offering telemedicine services to their employers. Estimates suggest that one-third of employer group plans already cover telehealth in some form. A 2014 Towers Watson study concluded that U.S. employers could potentially save up to $6 billion per year if their employees routinely engaged in remote consultations for certain medical problems instead of visiting emergency rooms, urgent care centers and physicians’ offices. Telemedicine providers vary in technological sophistication, and a wide variety of medical specialties are now common offerings of telehealth services. Because telehealth can be provided 24-hours per day from any location, it is often an optimal choice to those seeking care on an alternative basis to traditional physician clinical settings or hospital facilities, or for patients unable to access in-person services due to factors such as distance from providers or nontraditional work schedules.
Telehealth Challenges & Considerations
Studies have suggested that there is little difference between the care given in-person and the care given via telemedicine appointments, and medical malpractice-related claims substantiate that data. Further, state and federal government, as well as medical associations, including the American Medical Association (AMA), are encouraging and assisting with the utilization of telehealth. To date, there have been only a handful of reported telemedicine malpractice claims. While this may largely be due to the low number of telemedicine visits as compared to in-person visits, it may also be the case that liability suits have been settled out of court and not reported; even when claims are settled, confidentiality agreements may prevent any information from being disclosed. However, it would be imprudent to turn a blind eye to potential liability issues as telemedicine use continues to grow.
A number of legal and regulatory issues may arise with the use of telehealth, including cross-border licensure, prescribing, credentialing and cybersecurity. Many telehealth skeptics have long argued that the nature of remote or virtual consults would lead to an increased risk for medical professional liability, or medical malpractice claims, given the nature of how telehealth care services are provided, but this argument has not been supported by the data thus far.
The Physician Insurers Association of America (PIAA) published a July 2015 article that compared telephone-treatment medical malpractice claims versus overall medical professional liability results within the PIAA Data Sharing Project (DSP), and found:
• Of the 94,228 total claims in the DSP during the period from 2004-2013, a total of only 196 claims were linked with telephone treatment.
• Of those 196 reported claims, 56 resulted in some form of claim payment.
• The total indemnity loss for related to telephone treatment was only $17 million, compared to $8 billion for the total of all medical professional liability losses in the DSP.
• Telephone treatment claims thus represented only about 0.21% of all medical professional liability losses.
• The average indemnity loss was also lower for telephone treatment at $303,691, compared to $328,815 for all medical professional liability claims within the DSP.
Additionally, a 2014 study by a large multistate, nonprofit health care system that implemented a tele-ICU program in 2006, covering 450 ICU beds across five states, found that the frequency of malpractice claims and incurred costs for critically ill adults were significantly lower at sites with a tele-ICU than at those without a tele-ICU. Nevertheless, as telehealth usage increases, we will likely see a natural increase in medical professional liability claims, and telehealth providers must be prepared to protect themselves from this exposure.
With rising populating of telemedicine, physicians and insurers are increasingly needing to plan how to handle telemedicine from a malpractice perspective. Doctors may be incorrect to assume that practicing telemedicine will raise liability. Theoretically, telemedicine tends to be low liability: telemedicine physicians are more likely to deal with routine checkups and prescription-writing than complex, high-risk procedures. Additionally, rather than simple phone call consultations as would occur between on-call physicians and patients in years past, secure video chat platforms that replace these phone calls often provide a platform to capture notes from the online visit, arguably leading to better documentation and less liability in the event a claim does arise.
In the second installment, I'll discuss specific considerations unique to telehealth, including communication, online diagnosis and prescribing, informed consent, cost-savings, data breaches, and licensing - stay tuned!
Center for Telehealth & e-Health Law (CTeL): www.ctel.org
The American Telemedicine Association: www.americantelemed.org;
The Telehealth Resource Centers: http://www.telehealthresourcecenter.org/legal-regulatory.
 Global Telemedicine Market—Growth, Trends and Forecasts (2016–2021), Mordor Intelligence (Aug. 2016).
 Telemedicine Technologies and Services Market to reach US$ 86.7 Bn in 2023, https://globenewswire.com/news-release/2016/07/13/855662/0/en/Telemedicine-Technologies-and-Services-Market-to-reach-US-86-7-Bn-in-2023.html
 Current Telemedicine Technology Could Mean Big Savings, available at https://www.towerswatson.com/en-US/Press/2014/08/currenttelemedicine-technology-could-mean-big-savings.
 Lilly C.M., Kempner K., Eriksson E., et al., Critical Care Telemedicine: Evolution and State of the Art. Critical Care Medicine, November 2014, Volume 42, Number 11: 2429-2436.
 Global Telemedicine Market Outlook 2020, RNCOS (May 2015).