Telemedicine, or the use of technology/telecommunications for the delivery of healthcare services when the healthcare practitioner and the patient are not in the same physical location, is growing in popularity across the nation. The potential benefits of telemedicine include immediate/improved patient access, reduced service gaps, quality improvement; enhanced clinical support and increased patient satisfaction. Although telemedicine can offer significant benefits to local providers and their patients, all parties must be aware of the associated challenges and take steps to address the regulatory and common law issues that are specific to or may impact telemedicine services. Risk managers should work collaboratively with their facilities’ quality, medical staff, compliance and legal professionals to reduce risk to the facilities and their patients.
From a legal perspective, telemedicine’s rapid growth raises questions regarding the application of traditional legal principles to a new delivery system. Because it is a relatively young service, there are few reported cases to provide guidance regarding telemedicine’s proper scope and application. Some states, such as Florida, are establishing standards for the use of telemedicine. Others have been slow in addressing it. In the absence of specific telemedicine statutes or cases, existing state tort, contract and civil procedural law govern telemedicine malpractice issues.
Common law medical malpractice principles apply to telemedicine: The existence of a practitioner-patient relationship; conformity with or breach of the relevant standard of care; and resultant damages. In assessing potential telemedicine malpractice issues, a number of key questions should be considered:
- Did a physician-patient relationship exist?
- Where is the patient located?
- Where is the practitioner located?
- What is the appropriate standard of care?
- Is the practitioner properly trained to use the telemedicine equipment?
- Can a practitioner be liable for negligently supervising other providers via remote connections?
- What injuries might a patient suffer (or claim to suffer) that would arise from long-distance healthcare?
- Can a provider’s failure to use available telemedicine technology be considered malpractice?
- Does the practitioner’s professional liability insurance cover telemedicine services?
- Does the telemedicine provider have sufficient assets in the state (or, in the case of international telemedicine services, in the United States) to satisfy a judgment where the patient and local provider are located?
A practitioner-patient relationship ordinarily exists where the practitioner provides a service to an identified patient, such as in the case of teleradiology, the most common form of telemedicine. When, however, a consultation is between physicians, and a specific patient is not identified, there is less likelihood that a practitioner-patient relationship is established.
With the ubiquity of mass communication and continuing education, practitioners are often held to a national, rather than strictly local, standard of care. To the extent that a community standard of care exists, the question in telemedicine may be which community’s standards apply—that of the patient or that of the provider? The provision of healthcare services is generally held to be where the patient is located, so the standard of care in the patient’s community should—but may not always—apply. Practitioners and facilities should therefore be mindful of the relevant standards of both the patient’s and the practitioner’s locale.
Moreover, as telemedicine becomes more prevalent, it is fostering its own standard of care. For example, the failure to obtain a telemedicine consultation may, in some cases, be considered a breach of the standard of care, if a reasonably prudent practitioner would have employed telemedicine under similar circumstances.
How can practitioners and facilities manage expectations and reduce/allocate risk in telemedicine encounters? That subject and others will be addressed next month in part two of “The Opportunities and Challenges of Telemedicine.”