By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
“Telemedicine” is a term that covers any use of electronic communication technology to convey medical information. It can be as basic as seeking a consultation or as advanced as robotic surgery. Teleradiologists and telepathologists use electronic communication to send radiographs and specimen images for diagnostic or consultation purposes. Pacemakers, electrocardiograms and oxygen saturations can be evaluated electronically by telecardiologists. Computer enhancement assists in the diagnosis and treatment of skin lesions in teledermatology. Electronic stethoscopes can be used to auscultate heart and lung sounds during electronic house calls in tele-home health care. Telepsychiatrists can have therapy sessions with patients who are unable to come to their office. Panels such as tumor boards and ethics committees can tele-conference with specialists.
You will probably eventually be involved somehow in telemedicine, either as a consultant or as a seeker of consultation. Be aware of the liability issues.
1. Licensure
(i) Are you exceeding the license granted by your own state?
You can be subject to disciplinary action in your own state if you use your license inappropriately as a predicate to practice telemedicine. So you must determine if your state permits you to act as a telemedicine consultant under your local license to physicians in other states.
(ii) Are you engaging in the unlicensed practice of medicine in other states?
There is no national consensus on what states demand from physicians located outside their borders and are practicing telemedicine affecting their citizens. Some states demand full licensure, some offer restricted licenses for telemedicine, and some offer licensing by endorsement under reciprocity agreements with neighboring states.
Despite the wide range of options, there is a common thread to keep in mind: if there is a regular, ongoing practice of telemedicine in the state (as opposed to an occasional consultation) the state will want degree of licensure. A physician who lacks such licensure can be subject to prosecution for the unlicensed practice of medicine.
2. Insurance coverage
(i) Have you dealt with licensure issues that your carrier requires?
Most malpractice policies specifically exclude coverage for unlicensed activities.
Some states require insurers to cover work that extends beyond state borders and some do not. Know where your state stands and obtain coverage in any state with patients affected by your consulting if you do not have that protection.
(ii) Does your carrier cover you for telemedicine practice?
Do not assume that just because medical conduct performed in person, such as reading a CT or interpreting an EKG, is covered in your policy that the same work is covered when you do it electronically at a distance. Telemedicine consulting may not be covered by your malpractice insurer and you may need to obtain surplus lines coverage.
3. Billing
(i) How is billing being handled?
Compliance with payor limitations are critical. For example, Medicare generally reimburses only for standard consults but will reimburse for teleradiology and EKG and EEG interpretations as well as for telemedicine services to rural areas.
4. Confidentiality
There is nothing unique to telemedicine in this regard. The same rules apply to consulting with a physician across the country as apply when consulting with a physician across the room.
What should therefore be borne in mind is the gravity of those issues – that under both HIPAA and state law there is significant potential liability for failing to safeguard protected health information and to maintain safe transmission systems. This applies to both the referring physician and to the telemedicine consultant.
The actual sharing of the confidential medical information in the telemedicine setting is covered under the TPO (treatment, payment, operations) exception in HIPAA and so the patient does not have to specifically authorize it.
Beyond that, ensure that only authorized individuals have access to the information. Even within this group, verify the least number of people necessary to accomplish the work have access. Ensure that the actual transmission process is secure.
If mental health and/or substance abuse issues are addressed, the very strict additional levels of confidentiality that apply to those issues must be respected.
The American Telemedicine Association (ATA) guidelines also specify that both rooms – the one where the requesting physician is and the one where the consulting physician is – be considered as equivalent to patient examination rooms for the purpose of effecting adequate privacy.
Both the consulting physician and the requesting physician must have set protocols to cover confidentiality with regard to their e-medicine activities.
5. Negligence liability
(i) Can a medical malpractice action be brought in the setting of telemedicine?
Yes.
(ii) Where can the action be brought?
The issue of “forum shopping” comes into play if the doctor provided the telemedicine service in a state different from where the patient lives.
Most jurisdictions will permit a resident to bring a lawsuit where the patient received care or where the defendant physician’s office is located.
Telemedicine obviously expands the scope of venue exposure. The plaintiff can bring the telemedicine consultant into a court in his state.
A state may also require venue. For example, Montana and North Carolina both require that any medical malpractice claims by their residents that are based on telemedicine must be brought within their state.
A physician who practices in a state with a short Statute of Limitations should not assume that time limit will apply if he is sued for telemedicine consult.
Different states also take different approaches to the Standard of Care. Some use a national standard and some use a local one. The consulting telemedicine physician should therefore become acquainted with the standards used in the states they extend their practice to.
(iii) What are the potential causes of action?
Any cause of action that can be brought in a standard setting can apply to telemedicine.
The physician who requests the telemedicine consult, as a general rule, is allowed to rely on the telemedicine consultant. For example, a clinician is not required to have all studies read by a “nighthawk” then re-read. However, just as in face-to-face consulting, the user physician is responsible for choosing a proper source of advice and of implementing any advice appropriately. He can be liable for negligent referral if he had reasonable knowledge that the telemedicine provider was deficient but he continued to use him.
(iv) Are there issues unique to telemedicine?
ATA has guidelines for consideration by any physician expanding into telemedicine.
For example the ATA guidelines note that transmission speed must be optimized and that speeds lower than 384Kbps impede quality. ATA guidelines also discuss the monitor resolutions and specify the need for zoom and pan functions.
In summary: Telemedicine greatly expands the capacity of physicians to consult about their patients but it carries liability pitfalls that both requestors and consultants should understand.
The rules regarding telemedicine are a mess. Ideally, state medical boards will harmonize their disparate rules into a single set. This would involve creating model state statutes. There, a conference is convened and the interested parties try to define what the rules should be. Then the legislatures votes on adopting the model statute (or the Board of Medicine ratifies the rules). Trying to keep up to date on the rules of 50 states is an impossibly difficult task.
I am contemplating starting a telemedicine based practice endeavor that is basically a review of medical; records and teleconmference with the client in regards to their concerns and other issues associated with their healthcare. It is more of an advisory service than a 2nd opinion service so people’s concerns are addressed by an outside party regarding the recommendations and quality of care they have encountered. A flat hourly charge will apply plus the cost of obtaining medical records with proper permission. I realize that giving advice is practicing medicine, but no examinations, treatments, disability, malpractice or other administrative issues will be addressed or provided by mutual agreement. A full report will be issued to the client for them to use as they wish. Please advise how you think the upcoming regulations will impact my plans.I do not plan to carry malpractice and my assets are in qualified retirement vehicles and spousal accounts that I am not listed on except in case of her death.-David S. Knapp, MD FACR
If you are being “hired” by the patient, then you have a doctor-patient relationship, and it would be considered the practice of medicine. Some state Board of Medicine mandate that you must initially have a face to face encounter if engaged in the practice of medicine, unless you are consulting to another party – eg: radiologist/pathologist. Not every state takes this position, though. Every state is different. Most states take the position that in a telemedicine encounter, the practice of medicine is occurring where the patient is and you would need to be licensed in that state. See http://www.fsmb.org/pdf/FSMB_Telemedicine_Policy.pdf
Just want a clarification here- is a phone consult the same thing as telemedicine?
A phone consult can be the same as telemedicine.
The article is a bit incomplete, in that it does not discuss details about HIPAA agreements associated with transmitting, storing and maintaining PHI. If you are receiving or transmitting PHI that associates an actual patient’s name with it, you are specifically subject to HIPAA regulations regarding managing that data. In my consulting work I often use patients’ initials only. But I still execute a HIPAA business agreement anyway, because it is easy to make a typing error and include a name.
At the very outset, you should execute a written HIPAA business agreement between the parties that you receive and send PHI. This must be executed and signed prior to the first actual transmission or receiving of the PHI. For that reason, the HIPAA agreement should have both time and date on the agreement.
There are arguments about how long these are valid, but I would suggest no longer than a year. After that you should execute another one. All HIPAA business agreements should be stored and never lost or misplaced.
Then there is the issue of including the patient in the loop. If a patient is included in the loop of transmissions, you are essentially practicing medicine in the jurisdiction where the patient lives, because the patient may or may not decide to follow your recommendations, or learn from them regarding his specific case.
Telecommunication medicine is fraught with legal obstacles of a new, evolving format. While it is still growing in the law, it may be impossible to sort it out completely. But you could err on the side of being especially careful. Then there is also your intent to deal with. If you make a good-faith effort to learn about the requirements in the areas you intend to practice telemedicine, you may have less chance of running afoul of the new laws.
An example of this intent is to make a specific application for telemedicine practice in the states where you intend to do this, and wait for their reply. States are always on the lookout for making more money. If your application comes with a fee, it will go a long way to preventing future problems. This is especially true in states that have no specific telemarketing practice laws.
This is a business decision for you. Unless you intend to practice as a full-time consultant, it may not make sense. There is also the issue of whether or not you maintain your professional liability coverage. It is unlikely that your carrier has a specific policy for consulting. You will likely have to pay the full freight.
Michael M. Rosenblatt, DPM
This is an important post even if telemedicine is only a small fraction of your medical practice. Interestingly, we have never had a pharmacy refusal calling in prescriptions for our out-of-state patients. An adverse drug reaction however could open a can of worms I’ve never contemplated.
Eric
Dr. Joseph’s very relevant post gave me thought. Some physicians practice on the cusp between two states or are very close to borders of even foreign countries. This is especially true in DC or Blaine Washington. Those doctors might consider getting licensed in those other states/countries, as a matter of convenience and self-protection.
If you have to call in an out-of-state prescription, you might consider keeping it to one that you’ve already used for your patient many times in the past. An example might be an insulin prescription that the patient lost or ran out.
The chances of an untoward reaction in those situations are considerably less than a completely new drug or one that you’re changing the dosage markedly. When I was back in school, a pharmacology professor suggested we stay within the framework of drugs that we were very familiar with, used frequently and were very much aware of their treatment ramifications. He further suggested that brand new drugs on the market should be left to those who practice at universities or very large group practices. He strongly urged us against taking on new trials of new drugs for research. He felt that the risk to those in private practice were huge and totally unwarranted. An exception might be for an oncologist who practices cutting edge. But those doctors are usually associated with large institutions which have considerable legal power at their beck and call. You and I don’t have this.
The reason I bring this up is that it is likely that a considerable percentage of telemedicine practice is providing out- of-town patients with prescriptions.
If you’re calling in a prescription for a completely new patient you’ve never even seen, you are taking a risk that is beyond the pale. I know this is done. I’ve just never seen any point in taking that kind of risk, for both you and your new patient. If you’re taking on a telemedicine practice, you could always demand that the patient at least make ONE trip to your location for a first examination and a few possible referrals. When and if a lawsuit raises its head against you, you will at least have a defendable position.
Michael M. Rosenblatt, DPM