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LEGAL ISSUES SURROUNDING TELEMEDICINE

Telemedicine Legal Issues - HKQ Law Attorney Joseph A. Quinn, Jr. DiscussesSome 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.

Informed consent

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.)

Misdiagnosis

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?

Jurisdiction

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.

Data breaches

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.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at www.HKQLaw.com or by calling (800) 760-1529.

				

 

As Hourigan, Kluger and Quinn addresses the concerns raised by COVID-19, the health and safety of our clients, employees and friends of the firm remain our top priority.


These are very difficult and scary times and we hope that you and your loved ones are safe and symptom free. We recognize that so many of you are understandably anxious about your health, the economic impact of this pandemic and all of the consequences of social isolation.

We also recognize that many of you are anxious about how the coronavirus is impacting the Court systems, our firm and your cases. Although all of our offices are closed, our firm has remained fully operational and we have initiated procedures that allow all of our attorneys and staff to work remotely from their homes. Each of us and our staff will respond to any emails and calls about your cases as quickly as possible.

Our Federal and State Courts have instituted significant changes in their calendars as a result of the coronavirus. Although most courthouses are closed to the public, and Hearings and Trials will be delayed for some time, there are matters that can proceed telephonically and by video. Despite these changes in the Court calendars, we are working diligently on your cases and are determined to do whatever we possibly can to assure an early and just recovery for you and your loved ones. Even under these difficult circumstances, we believe that "Nobody will work harder for you than we will."

With regard to new potential clients, we are not in a position to have an in-person new client meeting, but we will be conducting these initial meetings via phone. New potential clients should call us for a free telephone consultation at (570) 287-3000.

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