Telehealth Booming in EDs, but Poses Some Unique Liability Risks
Since the COVID-19 pandemic began, “there has been a dramatic uptick in the use of telemedicine in the ED,” says Angela Russell, JD, managing partner in the Baltimore office of Wilson Elser.
EDs are using telehealth for screening visits before arrival or for follow-up re-evaluations on COVID-19-positive patients.1 Expanded coverage and relaxed requirements allowed for reimbursement of these visits.2,3 At both the state and federal levels of government, some changes are expected to become permanent.4,5
“It appears that medical-legal risk to the provider and hospital is still relatively low, assuming that the provider is making every effort to meet the standard of care,” says Adam Hennessey, DO, an EP at Our Lady of Lourdes Medical Center in Camden, NJ.
The standard of care remains the same whether the ED provider is seeing a patient in person or virtually. “If a provider is unable to perform a virtual evaluation that is essentially equal to that of an in-person evaluation, and subsequently fails to refer the patient to an in-person clinical setting, then he or she has potentially breached the standard of care,” Hennessey explains.
It is important to know what can be excluded safely in a telemedicine consult, and what requires urgent and/or emergent in-person follow-up. “As clinical conditions become more complicated, the risk to the provider would theoretically increase, and also would make telehealth evaluation more difficult,” Hennessey says.
Richard Cahill, JD, sees these specific liability risks for hospital-based telehealth providers, including those in the ED setting:
- insufficient confirmation of patients’ identity;
- incomplete history-taking;
- inadequate visual examinations;
- the possible inconsistent nature and extent of triaging (by both administrative and professional staff);
- deficient charting, discharge instructions, and follow-up instructions.
“Above all, practitioners must appreciate that telehealth encounters are evaluated by the same community standard applicable to traditional onsite visits,” says Cahill, vice president and associate general counsel for The Doctors Company.
Russell says there are certain risks unique to the ED when it comes to telehealth. These include an inability to attend to serious conditions as quickly as would happen during an in-person ED visit, failure to appreciate presenting symptoms, and performing a telemedicine exam when it should have been performed in person given the patient’s condition.
When using telemedicine for ED encounters, Russell says liability risks can be minimized with proper screening. Some patients may need to be seen in person for an ED provider to adequately assess them. “Failure to do so could be considered malpractice,” Russell cautions.
On the other hand, some known ED risks can be lowered with telemedicine. “This assumes the patient can be adequately treated virtually, and that they do not need to be seen in person,” Russell explains.
ED wait times declined with a hybrid telehealth program at one hospital.6 Offering telehealth at odd hours decreased the number of patients who leave without being seen, according to a study at an urban academic ED.7 Telemedicine consults speeded interhospital transfers for severely injured patients.8 Telehealth also shortened wait times for behavioral health patients at rural EDs.9
Notably, all these studies were conducted well before the COVID-19 pandemic. “This is a trend in medicine that has been gaining interest over the past decade, to address ED concerns such as wait time, congestion, and adequacy of treatment,” Russell says.
To reduce liability risks of telehealth, Cahill encourages EDs to develop policies and procedures for determining the types of circumstances and conditions appropriate for virtual care. Mandate healthcare providers to follow specific requirements in preparation of every encounter (such as chart review, if possible). Adopt guidelines to be used during the patient evaluation to comport with community standards for history, diagnosis, specialty referrals, pre-procedure informed consent, refusal of care, medication prescriptions, and post-visit instructions. Finally, establish clear directions for documentation created as a result of any telehealth visit.
ED staff fielding phone calls should be trained appropriately on which individuals should be directed immediately to an in-office visit, urgent care, or the ED, or to hang up and call 911 without delay. “Healthcare providers should perform a similar function as additional information is obtained during their virtual encounter concerning the patient’s medical condition, and as the degree of exigency becomes better understood,” Cahill offers.
This could minimize potential liability exposure in the event of an adverse outcome. It may reduce the likelihood of other risks, too, such as an administrative investigation by a state medical board for infractions of licensing laws, an inquiry by federal regulatory agencies for compliance violations, civil litigation seeking monetary damages for professional liability, a report to the National Practitioner Data Bank, or a CMS billing audit that could lead to sanctions.
Cahill says ED telehealth policies “should be periodically reviewed and audited for purposes of consistency, uniformity, and compliance with the prevailing standard of care for facilities similarly situated in the community.”
- Chou E, Hsieh Y, Wolfshohl J, et al. Onsite telemedicine strategy for coronavirus (COVID-19) screening to limit exposure in ED. Emerg Med J 2020;37:335-337.
- Weigel G, Ramaswamy A, Sobel L, et al. Opportunities and barriers for telemedicine in the U.S. during the COVID-19 emergency and beyond. KFF Issue Brief, May 11, 2020.
- Centers for Medicare & Medicaid Services. Trump administration proposes to expand telehealth benefits permanently for Medicare beneficiaries beyond the COVID-19 public health emergency and advances access to care in rural areas. Aug. 3, 2020.
- Guth M, Hinton E. State efforts to expand Medicaid coverage & access to telehealth in response to COVID-19. KFF Issue Brief, June 22, 2020.
- Verma S. Early impact of CMS expansion of Medicare telehealth during COVID-19. Health Affairs Blog, July 15, 2020.
- Reddy S. Can tech speed up emergency room care? The Wall Street Journal, March 27, 2017.
- Rademacher NJ, Cole G, Psoter KJ, et al. Use of telemedicine to screen patients in the emergency department: Matched cohort study evaluating efficiency and patient safety of telemedicine. JMIR Med Inform 2019;7:e11233.
- Mohr NM, Vakkalanka JP, Harland KK, et al. Telemedicine use decreases rural emergency department length of stay for transferred North Dakota trauma patients. Telemed J E Health 2018;24:194-202.
- Fairchild RM, Ferng-Kuo SF, Laws S, et al. Telehealth decreases rural emergency department wait times for behavioral health patients in a group of critical access hospitals. Telemedicine J E Health 2019;25:1154-1164.
EDs are using telehealth for screening visits before arrival or for follow-up re-evaluations on COVID-19-positive patients. It is important to know what can be excluded safely in a telemedicine consult, and what requires urgent and/or emergent in-person follow-up.
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