Telemedicine & Physician Liability Issues By Steven Kmucha, MD, JD, FACS This article is reprinted with the permission of the San Mateo County Medical Association. Telemedicine—the provision of medical care using electronic communications, information technology or other means, between a licensee in one physical location and a patient in another—is growing especially rapidly. Telemedicine typically involves secure video-conferencing or store/forward technology to provide health care delivery by replicating the traditional in-person interaction between a patient and a physician. It generally excludes audio-only telephony, routine email, instant messaging, and fax. Telemedicine technologies can facilitate communication between patients and their health care providers, including scheduling appointments, monitoring chronic conditions, obtaining laboratory results, prescribing medication, and clarifying medical advice. However, state medical boards face complex challenges in adapting regulations historically intended for the in-person provision of medical care to this new delivery model. Last April, the Federation of State Medical Boards promulgated Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine to educate licensees about the appropriate use of telemedicine technologies in the practice of medicine. The following is a summary of those guidelines.
LICENSURE A physician must be licensed by, or under the jurisdiction, of the medical board in the state where the patient is located. Physicians who treat or prescribe through online services sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients receive care. A physician who lacks such licensure can be subject to prosecution for the unlicensed practice of medicine. Most professional liability insurance policies specifically exclude coverage for unlicensed activities; some states require 26 | THE BULLETIN | MARCH / APRIL 2015
professional liability underwriters to cover practice that extends beyond state borders and some do not; if coverage does not extend beyond state boundaries, there may be no protection. Even if an in-person activity is covered, this activity may not necessarily be covered if it is provided electronically at a distance, even if in the state of licensure.
ESTABLISHING THE PHYSICIANPATIENT RELATIONSHIP It may be difficult to define the beginning of a patient-physician relationship precisely, especially when the two parties are in different geographic locations, but it tends to begin when an individual with a health-related matter seeks assistance from a physician. The relationship is firmly established when the physician agrees to undertake treatment of the patient and the patient agrees to be treated, whether or not there has been an in-person encounter. The physician should disclose his or her identity and credentials, verify the location of the requesting patient, and obtain the appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including any special informed consents regarding the use of telemedicine technologies.
EVALUATION AND TREATMENT OF THE PATIENT Before providing treatment, the physician must obtain a documented medical evaluation and review relevant clinical history to establish diagnosis and identify underlying conditions and/or contra-indications to the treatment recommended.
INFORMED CONSENT
• The physician must obtain appropriate documentation regarding the patient’s informed consent for the use of telemedicine technologies, including the following: • Identification of the patient, the physician, and the physician’s credentials; • Types of transmissions permitted using telemedicine technologies