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Medical Malpractice and Telemedicine
With increased reliance on telemedicine, many physicians question whether the elimination of in-office, face-to-face patient encounters increases their potential medical practice liability risks. Approximately 90% of health care organizations use or plan to implement telehealth platforms. In states permitting telehealth, 95% of large employers offered telehealth to employees for minor, non-urgent services in 2018.
Obviously, because a doctor does not actually see the patient in person, the doctor relies more on algorithm-assistant diagnoses, and patient records and history in order to make the call on how to proceed with a patient. Telemedicine may involve videoconferencing, remote patient monitoring or image capturing, and the use of peripheral digital diagnostic medical devices. The technology used must comply with HIPAA, HITECH and state regulations and providers must abide by all in-person medical practice standards, medical licensing boards and informed consent requirements. Consequently, physicians may face liability exposure in different venues as patients may choose or be required to file any malpractice lawsuits in their own states where the relating physician may not be licensed. This poses unique issues as to licensing, differing standards of care and malpractice insurance.
Most reported telemedicine malpractice cases involve physicians who prescribed medication across state lines without conducting in-office patient exams. For example, it has been held that physician review of patient questionnaires submitted over the internet was insufficient to prescribe medication absent physical examinations verifying patients’ health. Telemedicine raises issues not only regarding a physician’s state licensure but also a third party’s potential liability for accepting prescriptions from an out-of-state physician.