LEGAL ISSUES SURROUNDING TELEMEDICINE
January 17th, 2020 | Joseph A. Quinn, Jr.
Some ninety years ago, house calls by doctors were commonplace. Back then, who could have envisioned a doctor appearing in one’s home via a live picture? Radio News magazine did, with a futuristic-looking cover depicting a “radio doctor” linked to the patient not only with audio but also with video. At a time when radios were just starting to appear in American homes, and the first experimental television transmission was still a few years away, Radio News had foreshadowed telemedicine.
The term telemedicine would not find its way into medical literature until 1950. The article described the telephonic transmission of radiologic images which had begun in 1948. The images were transmitted between West Chester and Philadelphia, a distance of 24 miles.
Telemedicine or Telehealth?
The prefix “tele-“means “at a distance”. So, simply put, telemedicine is medicine practiced at a distance. The term is increasingly used interchangeably with “telehealth.” However, it is still seen by some as more encompassing than telemedicine. For example, telehealth can include professional health-related education, public health, and health administration.
Pending Pennsylvania legislation (Senate Bill 857) references telemedicine and defines it as “the delivery of health care services provided through telecommunications technology to a patient by a health care provider who is at a different location.”
Types of Telemedicine
There are three types of telemedicine: synchronous, asynchronous (store-and-forward) and remote patient monitoring.
The Office of the National Coordinator for Health Information Technology (ONC) defines synchronous telemedicine as "live video-conferencing – a two-way audiovisual link between a patient and a care provider.” As per the United States Department of Veterans Affairs (VA), this type of telemedicine requires “the presence of both parties at the same time and a communication link between them that allows a real-time interaction to take place.” Synchronous telemedicine may involve special telehealth-enabled instruments, such as video otoscopes or electronic stethoscopes. The instruments are operated by a nurse or technician at the consulting provider's direction.
Asynchronous telemedicine is also known as “store-and-forward”. It involves storing medical data and/or images, then transmitting the data or images to a health practitioner, usually a specialist. The transfer typically takes place over a period of time and in separate time frames. “Store-and-forward” is common in the medical fields of radiology, pathology and dermatology.
Remote patient monitoring enables healthcare professionals to track a patient’s vital signs and activities at a distance.”Telemonitoring” is often used for the management of high-risk patients, such as those with heart conditions, or patients who have recently been released from the hospital. Remote monitoring is also used extensively in the management of chronic diseases such as asthma, cardiovascular disease and diabetes.
Potential Legal Issues
While telemedicine certainly provides benefits, it also raises a number of legal issues.
Certain medical procedures and treatments require the patient’s informed consent. Would consent obtained via live video-conferencing fail to provide the face-to-face exchange contemplated by the Pennsylvania Supreme Court? Can the reliance on imperfect technology elevate routine treatments into a higher risk category, thus necessitating informed consent for those treatments? (A number of states have provisions that address informed consent for telemedicine-delivered services.)
One of the risks encountered in traditional medical care is misdiagnosis. It would not be surprising to learn that the risk could increase with telemedicine. A research study published in the Journal of the American Medical Association Dermatology, found that major diagnoses were repeatedly missed by some online doctors.
Duty of care
In a medical malpractice lawsuit, the plaintiff must prove four elements. Duty of care is one of them. If the patient is cared for locally by a physician, who has primary or limited responsibility? The patient’s physician? The remote telemedicine practitioner? Another practitioner? It all depends of the exact circumstances.
Standard of care
Medical malpractice occurs when the care given falls below the “standard of care.” That standard is based on the generally accepted medical practices which medical professionals in the same community carry out for patients with similar medical issues. By delivering health care across the state or even across the county telemedicine expands the “community”. How does this affect the standard of care?
The very nature of telemedicine means that the patient and provider are in different locations. If there’s a legal dispute, where is it settled? Telemedicine complicates traditional medical malpractice claims with distinct issues regarding jurisdiction. Medical care delivered across state lines with telemedicine can create further complications, what with states having different liability laws and statutes of limitations.
Failure to utilize telemedicine
The use or misuse of telemedicine can lead to a lawsuit, but what about not using it? Failure to utilize telemedicine that, if used, could have prevented more serious complications may result in medical malpractice litigation.
Since telemedicine is delivered through telecommunications, it is susceptible to data breaches. Such breaches can expose sensitive patient information and result in HIPAA violations. In 2018, 15 million patient records were compromised. The final 2019 tally is expected to exceed 25 million patient records compromised.
Once a Pennsylvania telemedicine bill is signed into law, there will be more clarity regarding legal issues. HKQ Law personal injury attorney Joseph A. Quinn, Jr. also anticipates “evolving case law, which will provide additional guidance”.
If you suffered a serious injury as a result of telemedicine or traditional medical care, call (800) 760-1529 to speak with a HKQ Law personal injury attorney.