Understand the Legal Implications of Telehealth Medicine
By Ashton J. Hyde, Esq. and Grace C. Johnson, Esq.
Ashton J. Hyde is a partner at Younker Hyde Macfarlane, a law firm that focuses on prosecuting medical malpractice claims on behalf of injured patients. Grace C. Johnson is an associate attorney with the firm.
Telehealth has been steadily gaining mainstream use throughout the last decade, but the practice was recently shoved, almost overnight, into the forefront of the healthcare profession. Telehealth is now used more frequently by medical groups and physicians than ever before. General reports before the COVID-19 pandemic approximated 90% of health care organizations used or planned to use telehealth in the future. This future may already be a reality, with a Mckinsey & Co. report estimating that physicians saw 50-175 times more patients over telehealth platforms since the pandemic's start.[i]
In general, telehealth includes using electronic communication and information technologies to deliver long-distance or remote healthcare. A physician's use of telemedicine (clinical services) is one of the most common uses of telehealth, but the industry also includes other professionals, such as pharmacists and nurses.
Telehealth platforms can be used to monitor, diagnose, treat, and counsel patients successfully. It works best for reading images, follow-up care, outpatient care, and long-term care. However, telemedicine is inappropriate for urgent issues, diagnosing underlying health conditions, or any practice where the standard of care would require a physical exam. There is potential liability for decision making without a proper physical exam. Health care providers must use their medical training and good judgment when deciding if telehealth is appropriate for their patients' needs.
There are many advantages to telehealth over more traditional healthcare options. Some of these advantages include:
- increased access to healthcare;
- increased access to medical specialists in small and rural communities;
- improved long-term care from the comfort of patients' homes; and,
- improved platforms to document patient care outside regular business hours.
But along with these benefits, telehealth carries the disadvantage of potential increased liability. This increased liability could stem from:
- breached standards of care;
- inadequate or improper licensing;
- limited care options;
- decision making without a proper physical exam;
- increased informed consent requirements; and,
- restricted prescription access.
Before expanding any practice into telemedicine, awareness of potential legal issues is crucial.
Standard of Care
Currently, telehealth laws and regulations vary significantly from state to state. But one rule is consistent across the board—that the standard of care for practicing medicine through telemedicine is identical to the standard of care required for practicing medicine during physical practice. It still requires appropriate examination, testing, labs, imaging, and consultations any in-person diagnosis needs. For physicians, it also includes supervising non-physician clinicians, where state law requires supervision.
The American Telemedicine Association currently determines the primary governing standards and guidelines for telemedicine. These can help physicians understand best practices in meeting the standard of care through telemedicine. The American Gastroenterologist Association provides coding guidelines and other resources to help physicians with telehealth and Evisits. Other professional societies, such as the American College of Radiology and the American Academy of Dermatology, also offer guidelines specific to their medical specialties' standards of care. These standards still vary from state to state, so medical professionals must be aware of any differences before treating patients in multiple states.
Licensing is one of telemedicine's most confusing legal issues. All states require a state license to practice medicine (traditional or telehealth) within their borders. Without that license, practicing medicine in the state is a crime. On top of being criminal, unlicensed practice can affect insurance, liability, billing, and malpractice coverage. When in a brick-and-mortar clinic, a physician's confidence in practicing within their licensed jurisdiction is easy. Now, the distinction is not so clear. Patients and physicians no longer have to be in the same room, city, or even state, meaning there could be unknown conflicting laws between the two locations. This increases the risk of practicing without being correctly licensed to higher than ever.
Because licensing is a significant roadblock in providing telemedicine, efforts are underway to make the process simpler and more streamlined. The Federation of State Medical Boards developed the Interstate Medical Licensure Compact (IMLC).[ii] This Compact can qualify physicians to practice medicine across state lines within the Compact so long as they meet specific eligibility requirements. The IMLC creates a fast-track option for physicians to fill out one application and receive licenses from multiple states at once. Currently, the Compact includes 32 states, D.C., and Guam.[iii]
Telemedicine healthcare still requires informed consent from patients. In fact, in some states, the requirements for care provided through telehealth are actually stricter than requirements for informed consent obtained in person.
Most informed consent laws require physicians to cover the risks and benefits of a recommended course of treatment and all feasible and reasonable material alternatives. On top of this traditional informed consent, physicians must get additional consent to receive care over a telehealth platform. This unique requirement explains what telehealth is, possible risks and expected benefits, and explains security measures used to protect patient information. States vary regarding when verbal consent is sufficient, and when written consent is required.
Telemedicine is still a relatively new industry, and few legal opinions specifically address telemedicine malpractice. However, prescribing medication based on telemedicine information is among the few issues the courts have addressed. A 2008 decision found that a physician review of patient questionnaires submitted over the internet was insufficient to prescribe medication without a physical examination determining patient health.[iv] This cautious approach stemmed from telehealth's early concern about the absence of patient-physician relationships and potential online pharmacy abuse. Since this decision, many states require an "in-person" visit with a patient before prescribing medication to them. The definition of what qualifies as an in-person visit varies from state to state—some still consider the use of real-time, audiovisual conferencing sufficient.
The law is still evolving for prescriptions. Some states don't allow any prescriptions, while others allow physicians to prescribe their patients' medications as part of an appropriate treatment plan according to their professional discretion. Almost every state prohibits the prescription of controlled substances based on telemedicine.
Telemedicine is becoming an increasingly significant part of both physician-patient relationships and the broader healthcare industry. Used appropriately, it can be an incredibly effective method of care for physicians and patients. they want to practice and continue to stay current on any changes. The Center for Connected Health Policy offers a report, updated semiannually, to help physicians stay up to date on their state laws. These efforts will help prevent physicians from exposure to liability and medical malpractice claims.
[i] Oleg Bestsennyy, Alex Harris, Jennifer Rost Telehealth: A quarter-trillion-dollar post-COVID-19 reality? Mckinsey & Company, May 29, 2020. https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/telehealth-a-quarter-trillion-dollar-post-covid-19-reality#
[ii] FSMB: Draft Interstate Compact for Physician Licensure Nears Completion, 2014 https://www.fsmb.org/siteassets/advocacy/news-releases/2014/draft-interstate-compact-for-physician-licensure-nears-completion.pdf
[iv] See, Low Cost Pharm., Inc. v. Ariz. State Bd. Of Pharm, 2008 Ariz. App. Unpub. LEXIS 790, referencing conclusion of Arizona Medical Board.