What physicians need to know about telemedical liability

As with any medical practice, there are liability issues physicians should consider when engaging in the practice of medicine using telemedicine technologies. An expert in legal medicine gives his take on what physicians should know.

Joseph McMenamin, MD, has more than 28 years of experience practicing health-related law. Dr. McMenamin provided physicians at the AMA State Legislative Strategy Conference last month in New Orleans with insight on the potential liability climate resulting from use of telemedicine and outlined key steps physicians can take to minimize potential risk.

This is the fundamental question in telemedicine, Dr. McMenamin said. It’s crucial to determining whether the physician has a duty to the patient, which is important in tort claims. For example, states could consider adopting the AMA model state legislation, which outlines steps to establish a proper patient-physician relationship prior to the use of telemedicine. The AMA’s principles for telemedicine specify that a valid patient-physician relationship must exist before using telemedicine, through:

• A face-to-face examination, if a face-to-face encounter would be required in the provision of the same service in the real world
• A consultation with another physician who has an ongoing patient-physician relationship with the patient
• Meeting evidence-based practice guidelines on telemedicine regarding establishing a patient-physician relationship developed by major medical specialty societies

Exceptions to the foregoing include on-call, cross coverage situations; emergency medical treatment; and other exceptions that become recognized as meeting or improving the standard of care.

Now that patients have wearable technology such as FitBits, how are they sharing health data with their physicians? And what—if anything—are physicians required to do with that data? “The more information there is, the harder it is to separate the wheat from the chaff,” Dr. McMenamin said. “What are the risks of us missing something in this vast amount of data?”

Telemedicine opens a giant door to a variety of medical liability risks that could go beyond tort claims, Dr. McMenamin said. For example, non-tort risks include licensure, credentialing, privacy and security, reimbursement, deceptive trade practices, wrongful data collection and more. As part of its telemedicine principles, the AMA is calling for educational resources to help physicians navigate this emerging field. The principles also advise physicians to make sure their liability insurance covers telemedicine services—especially for patients in other states—before engaging in such activities.

Physicians and other health practitioners delivering telemedicine services must abide by state licensure laws and requirements as well as state medical practice laws, including laws concerning consent involving minors, prescribing, reproductive rights, end-of-life decisions and scope of practice.

The AMA’s principles thus call for physicians practicing telemedicine to maintain licensure in the state where the patient is located. Similarly, model AMA state legislation ensures that, with exceptions such as curbside consultations, volunteer emergency medical care, physicians and other health practitioners practicing telemedicine are licensed in the state where the patient receives services, or providing these services as otherwise authorized by that state’s medical board.  

Visit the AMA Web page on telemedicine for more information, and read more about telemedicine’s challenges for the medical profession in the AMA Journal of Ethics.

Note: This story is not legal advice. Consult your attorney for any issues related to medical liability.