Potential Legal Implications of Telemedicine and Telehealth

The COVID-19 pandemic has required shutdowns to occur radically and rapidly nationwide. Many medical professionals have needed to rethink their delivery of care, most notably with the accelerated expansion of telehealth. Although, there are concerns regarding the safety and privacy of patients due to the rapid deregulation we have seen, despite some limited data available.

Many studies conducted on telehealth before the onset of SARS-CoV-2 indicated high levels of satisfaction as reported by patients. While the idea of seeing your doctor from the comfort of your home might seem like an easy, low-cost form of medical care, the fact of the matter is that there are some inherent problems associated with this type of care that could eventually lead to severe consequences.

What is the difference between Telemedicine and Telehealth?

The terminology of telehealth and telemedicine have been frequently used interchangeably, however, definitions vary in what is actually covered. Both serve to depict healthcare that is provided virtually and without physical contact with a healthcare provider. A patient explains his or her complaints virtually, often by video conferencing, and the healthcare provider will give a recommendation or diagnosis.

Telemedicine is treated as a clinical application of technology, while telehealth encompasses a broader, consumer-facing approach. As opposed to something strictly clinical, this could simply be a collection of methods to reach a health outcome. With the expansion of telehealth, we have seen health service disciplines from counseling to physical therapy to clinical medicine. Telehealth tends to put more emphasis on wellness and care management versus clinical diagnoses.

Potential legal problems with Telehealth and Telemedicine

A fundamental problem with these areas of technology is in the definition. Many organizations define each differently. This has the potential to cause some confusion when deciphering electronically what kind of service a patient has been treated with.

When a telemedicine visit occurs, a provider may see the patient via video conference and instruct him or her to use the camera to display the issue occurring on the patient’s body. It is easy to see how this scenario could create issues without the doctor being present in the room if the patient feels they were examined incorrectly.

Many states have still not established a standard of care when it comes to telemedicine, so it is difficult to say what exactly that is. This becomes especially problematic if the patient claims that they were not treated to a certain standard, which can vary from state to state and various medical disciplines.

Another scenario is if a healthcare provider gives an incorrect diagnosis or prescription based on a telehealth visit. Due to the undetermined requirements for telehealth and telemedicine, there may be an incomplete exam of the patient. The nature of the remote technology increases the likelihood of misdiagnosis and ultimately, a medical malpractice case.

The opportunity for fraud and abuse can also arise with increased usage of telehealth. The credentials of any provider should be carefully verified before a patient engages over technology. The definition of virtual abuse is vague and can make it hard to determine whether a patient is the victim of medical abuse over technology. However, as with any form of medicine, patients should be extremely cautious when interacting with a telehealth provider.

The evolving telemedicine legal and regulatory landscape

Telemedicine is a rapidly growing industry, which more recently has required further legal and regulatory measures. There are many legal pitfalls that are important to consider when it comes to a telemedicine program.

  1. Licensing. Most states require a physician to be licensed in the state where they are practicing medicine. Legal concerns are raised when telemedicine enables providers to cross jurisdictional boundaries to provide care. Expedited pathways to licensure are available in some states under the Interstate Medical Licensure Compact, but it is important for physicians to verify a patient’s location at the time of consultation regardless.
  2. Physician-patient relationship. In any case of medical malpractice, a physician-patient relationship has to exist. In the context of telemedicine, many states prohibit the use of these services before establishing this relationship through an in-person exam. There are also informed consent requirements that vary by state.
  3. Tele-prescribing. The federal government passed the Haight Act in 2008 in response to the proliferation of online pharmacies. Under this Act, a provider may not prescribe a controlled substance without first examining the patient in-person.
  4. Potential for fraud and abuse. Telemedicine providers can be held liable under state and federal false claim acts, anti-kickback statutes, and self-referral laws. Failure to follow state law without following the appropriate regulations could lead to significant liability.
  5. Privacy and confidentiality. As with any technology, there are risks for a data breach or other unauthorized disclosure. A covered entity should ensure their vendor is using fully encrypted data transmission, secure networks, and all other technical safeguards required under HIPAA.

Cases of medical malpractice are extremely complex and are easily complicated further with navigating the recent rise of telehealth and telemedicine. Contact an experienced medical malpractice attorney who can assist you if you feel that you have been the victim of medical malpractice.

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