The COVID-19 pandemic has resulted in shutdowns having to be radical and rapid across the country. Many medical professionals have had to rethink their care, especially in view of the accelerated expansion of telehealth. Although there are concerns about patient safety and privacy due to the rapid deregulation we have seen despite some limited data available.
Many telehealth studies that were performed prior to the onset of SARS-CoV-2 showed high levels of satisfaction, as reported by patients. While the idea of seeing your doctor in the comfort of your home may seem like a simple, inexpensive form of medical care, the fact is that there are some inherent problems associated with this type of care that can ultimately lead to serious consequences.
What is the difference between telemedicine and telemedicine?
The terminology of telemedicine and telemedicine has often been used interchangeably, but the definitions vary in what is actually covered. Both serve to represent health care that is provided virtually and without physical contact with a health care provider. A patient explains their symptoms virtually, often via video conference, and the healthcare provider gives a recommendation or diagnosis.
Telemedicine is treated as a clinical application of technology, while telemedicine encompasses a broader, consumer-centric approach. As opposed to something strictly clinical, this could simply be a collection of methods to achieve a health outcome. With the expansion of telehealth, we have seen health care disciplines from counseling to physiotherapy to clinical medicine. Compared to clinical diagnoses, telehealth tends to place more emphasis on wellness and care management.
Possible legal issues with telemedicine and telemedicine
A fundamental problem with these areas of technology is definition. Many organizations define each differently. This can lead to confusion when electronically deciphering what type of service a patient was treated with.
When a telemedicine visit takes place, a provider can videoconference the patient and instruct them to use the camera to view the problem occurring on the patient’s body. It is easy to see how this scenario can create problems without the doctor being in the room if the patient feels they have been wrongly examined.
Many states still haven’t established a standard for telemedicine care, so it’s difficult to say what exactly it is. This becomes especially problematic when the patient claims that they have not been treated to a particular standard, which can vary from state to state and different medical disciplines.
Another scenario is when a healthcare provider gives an incorrect diagnosis or prescription due to a telemedicine visit. Due to the uncertain requirements for telemedicine and telemedicine, an incomplete examination of the patient may occur. The nature of the remote technology increases the likelihood of misdiagnosis and, ultimately, medical misconduct.
The possibility of fraud and abuse can also arise from the increased use of telemedicine. A provider’s credentials should be carefully verified before any patient engages with technology. The definition of virtual abuse is vague and can make it difficult to determine whether a patient is a victim of medical abuse via technology. However, as with any form of medicine, patients should be extremely careful when interacting with a telemedicine provider.
The evolving legal and regulatory landscape of telemedicine
Telemedicine is a rapidly growing industry that has recently required additional legal and regulatory action. There are many legal pitfalls to consider when running a telemedicine program.
- Licensing. In most states, a doctor must be licensed in the state where he practices medicine. Legal concerns are raised when telemedicine allows providers to cross jurisdictional boundaries to provide care. In some states, accelerated licensing routes are available under the Interstate Medical Licensure Compact. However, it is important for doctors to independently verify a patient’s location at the time of consultation.
- Doctor-patient relationship. In any case of medical misconduct there must be a doctor-patient relationship. In the context of telemedicine, many states prohibit the use of these services before this relationship is established through personal assessment. There are also consent forms that vary from state to state.
- Tele-prescribing. The federal government passed the Haight Act 2008 in response to the proliferation of online pharmacies. Under this law, a provider cannot prescribe a controlled substance without first examining the patient personally.
- Fraud and Abuse Potential. Telemedicine providers can be held liable for false claims, anti-kickback laws, and self-referral laws under state and federal laws. Failure to comply with state law without complying with the relevant regulations can result in significant liability.
- Data protection and confidentiality. As with any technology, there is a risk of data breach or other unauthorized disclosure. A covered company should ensure that their provider uses fully encrypted data transmission, secure networks, and all other technical protective measures required by HIPAA.
Malpractice cases are extremely complex and can easily be made more difficult to deal with the recent surge in telehealth and telemedicine. If you feel you have been a victim of medical misconduct, reach out to an experienced medical misconduct attorney who can help.