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2 Big Telemedicine Malpractice Risks—And How to Protect Yourself

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Telehealth has the potential to improve outcomes and lower costs, the holy grail of healthcare systems. Despite these benefits, adoption has been slower than anticipated.

A Gartner report finds that one concern among physicians when it comes to telehealth is: “What is my legal risk when using virtual care?”

(The full report, “Market Trends: How Technology and Service Providers Can Position Telemedicine and Virtual Care in the Healthcare Provider Market,” is available to Gartner clients.)

So how risky is telemedicine?

Note that I’m not qualified to give legal advice, and no 1,000-word article can comprehensively address every legal risk associated with any topic.

In this article, I’ll walk you through two of the most common malpractice risks you take when offering telemedicine, as well as tips on how to mitigate the risk.

Risk #1: Online prescribing

The Center for Telehealth & e-Health Law (CTeL) looked at telemedicine malpractice cases, and according to its 2009 report, some telemedicine providers did face claims of alleged negligence.

Most of these cases involved physicians prescribing medications across state lines to patients the physicians had not previously examined.

Let’s look at one such case, via Medpro:

The doctor in this case received a sentence of nine months in county jail and a fine of more than $4,000 for practicing medicine in a patient’s home state without being licensed in that state.

It began when a patient filled out an online questionnaire. The website forwarded their responses to a processing firm which sent them to the physician, who was subcontracting for an online pharmacy and prescribed an antidepressant to the patient.

Shortly after filling the prescription, the patient committed suicide.

The doctor, pharmacy, website, and patient were all located in different states. The court decided the doctor needed to have been licensed in the patient’s home state to prescribe medicine to someone living there, and the doctor pleaded no contest to the felony charge.

How to protect yourself

Get to know your state’s laws. Before you do any online prescribing, look up state-specific information about online prescribing for each state where you’ll be issuing prescriptions. Go to the medical board for each state in question to find out whether they:

  • Require doctors to have a pre-existing relationship with a patient in order to engage in online prescribing. (How does the state define “relationship”?)
  • Require a face-to-face physical exam prior to online prescribing. Can the exam can be performed using a telehealth medium, such as videoconferencing?

For example, Arkansas and Idaho still have laws on the books restricting telemedicine.

In addition, some states ban the prescription of certain medications via telemedicine, such as those associated with abortions. As of 2016, telemedical abortions are banned in 20 states.

Many states have requirements specific to telemedicine related to:

  • Patient medical history
  • Written documentation
  • Follow-up care
  • Emergency provisions

Talk to the patient before prescribing. It’s not advisable to prescribe medication based only on the answers to an online questionnaire or survey. At no point did the doctor in the aforementioned example meet or communicate directly with the patient in question.

As of 2011, 28 states explicitly prohibit physicians from prescribing medication solely on the basis of information received through an online medical questionnaire. To find more about the laws on the books in your state, go here.

To help reduce your liability, take notes and keep records in such a way that you can easily demonstrate the following:

  • You’ve established an appropriate relationship with your patient
  • You have been able to adequately assess the patient
  • The patient has provided you with an accurate health history

Risk #2: Informed consent

Like licensure, laws around informed consent vary between the states. Some states require written informed consent, while in others, verbal consent is okay. Some states have informed consent laws that pertain specifically to telehealth.

For example, Michigan recently passed telemedicine legislation that is “poised to set standards for telemedicine industry,” according to mHealthIntelligence. It “provides flexibility” in how to obtain patient consent to be treated remotely.

Here’s an example of an informed consent form for a telemedicine provider based in Texas.

How to protect yourself

You need to know the informed consent requirements for every state whose residents you prescribe for, lest you open yourself up to suit for treating someone without first obtaining informed consent.

Make sure your 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
  • Descriptions of every telehealth service that will be performed and the technology that will be used

Going forward

The good news about telemedicine is that the risk was never terribly high. And it’s even lower now that Texas—the last state to do so—has abolished the requirement that patient-physician relationships be established with an in-person visit before a telemedicine visit.

According to Lexology, the Trump administration seems friendly toward telehealth. Congress is also supportive. Two senators, Cory Gardner (R-CO) and Gary Peters (D-MI), are pushing a bill forward that would allow eligible hospitals to test telehealth services in Medicare healthcare delivery models.

What’s needed next for telehealth is a telemedicine-specific standard of care, according to Steven Waldren, director of the Alliance for E-health Innovation at the American Academy of Family Physicians. Medical students need to be trained on telemedicine best practices from the get-go; without specific training on telehealth best practices, doctors often practice much too conservatively.

In the meantime, get to know your state’s laws—and the laws of any states where you’ll be treating patients, talk to patients before prescribing anything, and make sure your informed consent procedure is clear and comprehensive.

You also need to decide ahead of time which conditions you’re comfortable treating remotely and which require in-person visits. You should also have a process in place for when and how to escalate treatment to a face-to-face visit.

And if you’re interested in trying out telemedicine or learning more about the software that enables it, check out our telemedicine software directory.

Looking for Medical Practice Management software? Check out Capterra's list of the best Medical Practice Management software solutions.

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About the Author

Cathy Reisenwitz

Cathy Reisenwitz helps B2B software companies with their sales and marketing at Capterra. Her writing has appeared in The Week, Forbes, the Chicago Tribune, The Daily Beast, VICE Motherboard, Reason magazine, Talking Points Memo and other publications. She has been quoted by the New York Times Magazine and has been a columnist at Bitcoin Magazine. Her media appearances include Fox News and Al Jazeera America. If you're a B2B software company looking for more exposure, email Cathy at cathy@capterra.com . To read more of her thoughts, follow her on Twitter.

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