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Telemedicine: Practice Trends and Risk Exposure Considerations

Author: Emily Straub

Guest Editor: Cinnamon J. Carr

March 4, 2020 10:00am

Telemedicine (a.k.a., telehealth) is taking the practice of medicine to a new level. What is telemedicine? By definition, it is “the use of advanced communication technologies, within the context of clinical health, that deliver care across considerable physical distance.”[1] Whether you are talking about videoconferencing, the storing and forwarding transmission of medical data and images, or remote patient monitoring, telemedicine services enable physicians to provide healthcare to essentially anyone, anywhere.[2] [3]

While telemedicine is still an emerging practice, its popularity is growing at exponential rates.  According to a study by American Well, between 2015 and 2019, the percentage of United States physicians using telemedicine rose from 5% to 22%.[4] By 2022, this percentage is anticipated to skyrocket to 61%.[5] Projections aside, current physician polls indicate several factors are dissuading many from drinking the telemedicine “Kool-Aid” so to speak.[6] These factors include: (1) uncertainty about which insurance carriers will pay for telemedicine services; (2) ambiguity and insecurity about whether telemedicine is appropriate for the practice of particular types of medicine; (3) a shortage of  physician buy-in; and (4) lack of necessary support from hospital leadership.[7]

Concerns about telemedicine increasing the likelihood of litigation and liability exposure are very real.[8] [9] Authorities identify risk areas such as: insufficient verification of patient identity, substandard diagnosis and/or treatment, and inadequate intake of patient medical history, to name a few.[10] [11] There is also risk associated with physicians providing telemedicine in states where they are not licensed to practice medicine. While a physician may be licensed to practice telemedicine where he or she is physically located, it is the location of the patient on the receiving end of the service that determines the place where the service is technically provided.

Currently, there is no uniform set of practice guidelines required of physicians who elect to provide telemedicine services. Authorities such as the American Telemedicine Association (“ATA”) issues telemedicine practice guidelines.[12] Some practitioners incorporate these guidelines into their telemedicine practice, while other practitioners develop guidelines on an in-house basis.[13] Certain state medical boards have even adopted ATA guidelines (e.g., New York, North Carolina, Oklahoma, Pennsylvania).[14]

Takeaway

If you are going to offer insurance to a medical group or hospital that offers telemedicine services, be sure to confirm the physicians providing those services are licensed to practice medicine in all states where the services will be offered. Additionally, it may be prudent to require the medical group/hospital use ATA practice guidelines or otherwise utilize in-house guidelines that, at a minimum, satisfy ATA practice guidelines.

 

[1] Gerald-Mark Breen, Jonathan Matusitz, PhD, An Evolutionary Examination of Telemedicine: A Health and Computer-Mediated Communication Perspective, Soc Work Public Health, 2010

[2] Id.

[3] Xiao-Ying Zhang, Peiying Zhang, Telemedicine in Clinical Setting, Exp Ther Med, 2016

[4] American Well, Telehealth Index: 2019 Physician Survey, 2019

[5] Id.

[6] Id.

[7] Id.

[8] Alexander L. Fogel, MD, MBA, Joseph C. Kvedar, MD, Reported Cases of Medical Malpractice in Direct-to-Consumer Telemedicine, JAMA, April 2, 2019

[9] Fogel, A.L., et al., Direct-to-Consumer Teledermatology Services for Pediatric Patients: Room for Improvement, J Am Acad Dermatol, 2016

[10] Alexander L. Fogel, MD, MBA, Joseph C. Kvedar, MD, Reported Cases of Medical Malpractice in Direct-to-Consumer Telemedicine, JAMA, April 2, 2019

[11] Fogel, A.L., et al., Direct-to-Consumer Teledermatology Services for Pediatric Patients: Room for Improvement, J Am Acad Dermatol, 2016

[12] Elizabeth A. Krupinksi, Jordana Bernard, Standards and Guidelines in Telemedicine and Telehealth, Healthcare (Basel), 2014

[13] Id.

[14] Id.

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