EXECUTIVE SUMMARY

The malpractice risks of using telehealth are a growing concern for risk managers. Some risks are known, but the growing use of this technology may reveal new concerns.

  • Negligence claims from online prescribing are not uncommon.
  • Telehealth is inappropriate for some examinations.
  • Missed diagnoses are the most common allegation in telehealth.

Risk managers should be wary of the malpractice risks associated with telehealth, according to several experts who say the sudden increase in usage may have introduced insufficiencies that should be assessed now.

Although the risk of malpractice in telemedicine is low, there are areas of concern when it comes to the malpractice risk in telehealth, says Paul F. Schmeltzer, JD, an attorney with Clark Hill in Los Angeles. The practice of medicine across state lines is one potential issue.

Physicians delivering care through telehealth should be careful to avoid practicing medicine in a patient’s home state without being licensed in that state. In the case of most hospitals and physicians, this is generally not an issue, Schmeltzer says. However, providers should be aware of where their patient is receiving telehealth services before proceeding with the appointment.

Negligence claims from online prescribing are not uncommon, Schmeltzer notes. Some physicians who prescribe medications have faced liability for practicing medicine in a patient’s home state without being licensed in that state.

“Some states, such as California, require doctors to have a pre-existing relationship with a patient in order to engage in online prescribing. In those states, the physician should understand how that state defines a relationship,” he says. “Other states require a face-to-face physical exam prior to online prescribing. I would advise physicians to meet or communicate directly with the patient before prescribing medication.”

To reduce their liability for malpractice, Schmeltzer says physicians should maintain records that establish an appropriate relationship with the patient, that the physician was able to properly assess the patient, and the patient has provided the physician with an accurate health history.

“Physicians also need to know the informed consent requirements for every state whose residents they treat,” Schmeltzer says. “Otherwise, the physicians open themselves up to a potential lawsuit for treating someone without first obtaining informed consent.”

Schmeltzer notes telehealth is not appropriate for conditions that require a physical examination. Elderly patients may benefit from in-person visits vs. telehealth for assessments or other patient care visits.

“In malpractice claims from telemedicine, the most common allegation has been a missed diagnosis, and the most commonly missed diagnosis was cancer,” he says. “Physicians should also be aware that missed diagnoses for strokes, infections, and orthopedic concerns are not uncommon.”

How can hospitals be confident the care delivered through telehealth is equivalent to care provided in person? Thomas Davis, MD, a consultant and expert witness in St. Louis, says they cannot.

“Telemedicine is not, and, absent full telepresence technology that transmits touch and smell, will never be the equivalent of an in-person encounter. The spectrum of conscious and subconscious sensory information transmitted both ways during a telemedicine encounter is a fraction of that transmitted in an in-person encounter,” he says. “In addition, very few clinicians have formal training in the virtual delivery of healthcare. My residency in family medicine at the University of Missouri-Columbia is one of the few.”

Davis notes a med-mal lawsuit requires the patient not only be harmed in such a way that the financial value of the case is attractive to a plaintiff’s attorney, but also the patient is angry enough to initiate the case. If the patient feels connected with the physician and cared for human-human, the chances of a lawsuit are much lower.

“Telemedicine greatly reduces the opportunity to make that connection, and greatly increases the chances of a suit-filing should a bad enough outcome occur,” he says.

The greater the chance for an actionable outcome, the greater the redundancies that need to be constructed into the care systems. “Unfortunately, most health systems are designed to strip-mine healthcare dollars through an industrial delivery model,” Davis says. “As such, they are seeing telemedicine as simply a way to turn up the treadmill. That’s a recipe for disaster — for them and their patients.”

Use Systematic Approach

The best way to ensure the quality of care provided through telehealth is to use a systematic delivery approach with lots of documented evidence of training and acknowledgement of understanding on the part of the provider, Davis says. He suggests including these items:

  • Hard stop check boxes. “If an actionable outcome occurs and the provider can be shown to have checked a box inappropriately, the organization can deflect liability back to the provider,” he says. “The benefit of this approach varies with the relationship of provider and employer.”
  • Hard guidelines with specific instructions and mechanisms to address deviations during the encounter, such as when to send someone to the emergency department.
  • Compensation systems that do not disincentivize clinicians from conservative treatments as appropriate. For example, do not punish the clinicians financially for referring to the emergency department.
  • Formal training in “encounter hygiene,” such as using persuasion and influence tactics to create the simulacrum of a patient connection. The physicians should introduce themselves and establish their credentials at the very start of the encounter.
  • Make sure the patient sees a professional photo of the clinician even during an audio encounter.

Right Policies and Procedures

Telehealth services should use an organized structure that is multidisciplinary and multispecialty, which provides oversight and approval mechanisms, says Kim Pardini-Kiely, associate director in the Clinical and Operational Excellence and Innovation Services practice with Protiviti in San Francisco.

Policies and procedures should define what is clinically appropriate care for telehealth services, as well as what is not, by specialty, she says. Evidence-based practices should be in place for prevention/wellness care, disease management, patient triage for urgent care, prescribing protocols, mental health counseling, and psychotherapy, and applied consistently across all locations and by each provider.

The collection of patient monitoring data must include a process to evaluate and respond to the patient on treatment plans and any necessary modifications to the treatment plan, mitigating any risk for lack of follow-up, she says. Inclusion of Hospital Outpatient Quality Reporting indicators in The Joint Commission requirements for Ongoing Professional Practice Evaluation is a good mechanism for comparative data and oversight of the peer review process, Pardini-Kiely suggests.

There are specific types of care that should not be provided by telehealth, she says. Any care that would require an in-person physical exam would not be appropriate; however, a provider can determine during a telehealth visit that an in-person visit is necessary.

“Some of the best ways for ensuring the quality of telehealth care are through the collection and monitoring of patient satisfaction, disease-specific clinical outcomes, and prevention or wellness indicators that are tracked and compared to data collected for in-person visits, such as the Hospital Outpatient Quality Reporting by the Centers for Medicare & Medicaid Services,” Pardini-Kiely says.

SOURCES

  • Thomas Davis, MD, Tom Davis Consulting, St. Louis. Phone: (636) 667-6325. Email: tom@tomdavisconsulting.com.
  • Kim Pardini-Kiely, Associate Director, Clinical and Operational Excellence and Innovation Services, Protiviti, San Francisco. Phone: (415) 402-3600.
  • Paul F. Schmeltzer, JD, Clark Hill, Los Angeles. Phone: (213) 417-5163. Email: pschmeltzer@clarkhill.com.