The same technology that helps people communicate all over the world and do their jobs more efficiently has made its way to health care. Telemedicine is the practice of assessing patients remotely using videoconference, digital photography, instant messaging or other technology. This saves time and money, and enables patients and physicians to meet no matter where they are located. While an in-person visit may be required at first, follow-ups can be conducted via videoconferencing. Likewise, patients with chronic conditions are able to get necessary care via telemedicine rather than disrupting their schedules for frequent in-person visits.
Telemedicine promotes better patient care and greater access to medical services, and is becoming increasingly popular. Not only are specialized companies emerging in this field, but established health insurers and large health care institutions are introducing telemedicine services to offer medical care that often costs less, takes less time, and can reach patients in even the most remote locations.
Telemedicine will continue to grow as technology advances and acceptance increases. This is aided by regulations like the Medicare Telehealth Parity Act of 2015, which expanded telehealth coverage to Medicare beneficiaries in both rural and urban areas, and streamlined the payment system.
Studies have shown that there is little difference between the care given in person and the care given via telemedicine, and medical malpractice-related claims appear to substantiate that data. It is difficult to say if that trend will hold, however, and other liabilities may emerge. So far, there have been only a handful of reported telemedicine claims. This may be in part because the number of telemedicine visits, compared to in-person visits, is still so low. Further, liability suits that have arisen may have been settled out of court and not reported, and even when claims are settled, confidentiality agreements could prevent any information from being disclosed.
It is not difficult to foresee potential liability issues as telemedicine grows in popularity. Therefore, underwriters, lawyers, insurance brokers and health care professionals need to understand the regulatory and liability issues surrounding telemedicine, and the large coverage gaps that may exist with current professional liability policies. These include:
Location. If a telemedicine claim against a physician is filed, geography could play a part in determining who is liable. Technology enables people to communicate from anywhere, but standards have not been set for physicians who give medical advice and virtual care across state lines. Since care is provided in a patient’s state, that state’s laws may prevail. This has not yet been tested in the legal system, however.
Malpractice complexity. Medical malpractice claims are already highly complex. They sometimes involve a patient’s account of a situation versus a physician’s, and communication between the two. Telemedicine further complicates this as issues related to technology malfunctions could lead to a malpractice claim.
Standard of care. What is considered “good” care by a physician may be inadequate to a patient. There are various rules and regulations regarding the standard of care, and they vary by state. Unfortunately, most states have not yet determined a standard for telemedicine, with the exceptions of Hawaii, Colorado and Texas. But even these standards are flawed—they are somewhat inflexible, can be construed as vague, and become obsolete quickly because of changes in technology.
Data breaches. Medical information is protected under a number of laws, including HIPPA, HITECH and COPPA. As with any internet-enabled device or service, there is risk of a data breach, which may put sensitive patient information at risk of exposure.
Incorrect diagnosis/prescription. Undetermined requirements for telemedicine can lead to an incorrect diagnosis or incorrect prescriptions, because a telemedicine exam is not a complete physical exam as would normally take place in person. Similarly, if a patient is sending a picture of a physical issue such as a rash, a distorted image could lead to an incorrect diagnosis. In such cases, the physician is subject to professional liability claims.
Fraud and abuse. Clear guidelines are set for medical fraud and abuse for in-person doctor visits. In the world of telemedicine, however, what constitutes virtual abuse, and how can patients confirm that the physician is as credentialed as he or she claims? This is yet another area that needs to be standardized.
Standards and guidance around telemedicine need to be developed before physicians can safely give medical advice to patients. In addition to these liability issues, it is also important to understand what a professional liability insurance policy does and does not cover. Many current professional liability policies exclude telemedicine from coverage, so additional coverages will be required to ensure protection from liability issues. Health care professionals should also seek legal counsel to better understand how they are covered and what they will need to ensure that they can safely give medical advice via telemedicine.