Using mobile technologies to monitor patients, treat them, and diagnose them presents great opportunities for physicians. But before jumping on the telehealth bandwagon, physicians must be aware of the potential legal pitfalls and ramifications.
During his session at the HIMSS13 Conference in New Orleans, attorney Scott A.
Edelstein, a partner at Squire Sanders LLP and chair of the international firm's health IT practice, outlined some of these key areas of risk:
Licensure. The "general rule" regarding remotely treating and diagnosing patients is that the physician must be licensed in the state where the treatment or diagnosis is being provided, Edelstein told attendees at his session, "Legal Issues in the Convergence of Healthcare and Mobile Telecommunications," which he co-presented with attorney Mark Johnson, also of Squire Sanders.
Still, Edelstein said, there are a few exceptions to that rule:
• Consultation exceptions. Some states allow physicians licensed in one state to provide consultations in other states. In states that do allow this, the scope of the exception varies. For instance, physicians are often limited to a set number of times they can qualify for a consultation exception, said Edelstein.
• Emergency exceptions. In an emergency situation, for instance, if a patient is coding and a physician needs another physician's advice, the physician may be able to provide it remotely, said Edelstein.
• Special or temporary telemedicine license exceptions. This occurs when a state grants the physician a special license to provide telemedicine services in that state, said Edelstein, noting that only about nine states offer these special licenses — a number that has remained relatively stagnant over the past few years. "I'm not optimistic that we're going to see a whole lot of change in this area," he said.
• License endorsement. This occurs when one state recognizes another state's licensure for a physician. The majority of states do not do this, said Edelstein.
Malpractice and general liability. In addition to licensure restrictions, physicians must also consider malpractice risk when it comes to telemedicine.
Telemedicine raises many questions regarding when the physician/patient relationship has been created, said Edelstein. For instance, is it established even if the physician and patient have not met face to face? What about if the care the physician provides is solely through the Internet?
In many telemedicine situations, the physician/patient relationship has indeed been established, said Edelstein. "That relationship is established but in many cases the physician does not have sufficient information about the patient to really make an adequate diagnosis." He added that he's seeing more and more cases in which this raises problems for doctors.
Insurance coverage. Here's a big one for physicians to keep in mind: Most malpractice insurers do not cover telemedicine, said Edelstein. In fact, many contracts include provisions stating that the physician must be appropriately licensed in the jurisdiction where services are provided, he said. "I am surprised at how many clients I have talked to that have not looked at their insurance policies for malpractice."