As more US patients are diagnosed with COVID-19, a number of industry associations have recognized telemedicine—the practice of using technology to deliver healthcare remotely—as a viable means to give patients access to care and minimize exposure to the disease.
Adoption of virtual care has increased as the pandemic has significantly imperiled the country and the world, becoming a compelling option for triaging, screening, and assessing symptomatic at-risk patients.
Joe Murphy, Chief Operating Officer at Coverys explains, “The movement toward virtual care has absolutely been driven by the pandemic. We’ve made more progress, in terms of the adoption of telemedicine in the last six months, than we’ve made in the last six years. It’s important to know that telemedicine as a highly organized and structured model that’s been around for a number of years. It was safely designed for a physician to use with recommended protocols, and now with the pandemic the barriers to use telemedicine have been modified or relaxed.”
While telemedicine offers many benefits, this nontraditional mode of care delivery can expose the practitioner to liability. Healthcare practitioners and organizations must be careful to develop and implement a telemedicine program that not only provides quality care, but also mitigates risk to patient and practitioner.
“We’re watching the delivery of care shift to new models in front of our very eyes,” Murphy says. “It isn’t just the pandemic that is doing this. The movement toward value‐based care was already catalyzing new approaches to traditional medicine. As these changes occur, we need ways to look forward to predicting what will happen in the future, to predict risk, to understand these emerging vulnerabilities, and to help providers, practices, and hospitals proactively manage those risks.”
The proliferation of telemedicine since the pandemic began has already resulted in significant regulatory changes at the federal, state, facility, and individual provider levels. These changes have been necessary to protect both patients and providers but may result in a greater risk of liability.
Even as telemedicine can give providers a better window into their patient’s health, it opens the door to new liabilities. According to Stephanie Sheps, Vice President of Claims at Coverys, it comes down to care delivery, documentation, and security.
“The most obvious potential liabilities are the same as those that exist in a traditional in-person treatment setting—failure or delay in diagnosis, as well as the risks posed by failure to follow up, properly document a patient encounter, or refer for more specialized care. Basically, providers’ inability to use all senses to assess a patient creates a greater risk of a missed diagnosis in some medical disciplines,” Sheps says. “In addition to these risks, providers and facilities face cyber security risks related to those interactions, as well as the failure to address issues regarding patients who may not have access to the proper equipment for telehealth.”
Start Managing Risk Now
There are steps healthcare providers and facilities, as well as insurers and defense counsel, can take now to put themselves in a better position to defend these claims in the future. Consider the following key issues when planning, developing, and implementing a telemedicine program:
- State Laws and Licensure: In a traditional office visit, the patient and the practitioner are in the same state. In a virtual environment, this is not necessarily true. This means that the licensure requirements of multiple states may be relevant. The Interstate Medical Licensure Compact(IMLC) may provide an expedited pathway to licensure for qualified physicians who wish to practice in multiple states. Under this agreement, licensed physicians can qualify to practice medicine across state lines within the Compact if they meet the agreed-upon eligibility requirements. Practitioners should consult with an attorney, as licensing requirements vary add continue to evolve.
- Technology and equipment: The potential exists for problems with audio and video transmission and/or with computer screen resolution and system incompatibility. It is important to set up suitable resources to manage networks, hardware, and software. Additionally, an equipment malfunction or failure can distort an image or information and lead to inappropriate patient care, exposing a physician and facility to liability. Whenever possible, have a back-up plan that allows patient care in the event of an equipment malfunction.
- Privacy and security: Virtual telemedicine can make practitioners vulnerable to malware and hacks. Password-protected screensavers, encryption, and other safety measures can help keep information safe, while unsecured devices and systems, such as cellphones, laptops, and email, can result in security weaknesses. Practitioners should adhere to the HIPAA Security Rule as required.
- Documentation: Complete documentation is essential in healthcare, and this holds true when delivering virtual telemedicine services. Document all verbal, audiovisual, and written communication in the patient’s medical record. Document a virtual encounter at least as thoroughly as any other encounter and observe all medical and legal standards of care.
- Informed consent: When providing remote care, obtain informed consent. This should include disclosure of information about the telemedicine system, the potential risks and benefits of telemedicine, and equipment and technology limitations. The physician who is ultimately responsible for care should obtain the patient’s oral and written informed consent prior to the telemedicine encounter. Both the patient and the practitioner should agree that telemedicine is appropriate and understand that they have the ability to stop treatment at any time.
- Guidelines for remote patient monitoring: Currently, practitioners are remotely screening patients for COVID-19 using CDC guidelines, which include asking about a patient’s travel history and exposure to the virus as well as their symptoms. But telemedicine does have limitations. Clinicians may not be able to listen to a patient’s lungs without specialized equipment. Having a plan already in place regarding which conditions practitioners are comfortable treating remotely and which require in-person visits is key. Practitioners should implement a process and plan for when and how to escalate treatment to a face-to-face visit.
Although there is little debate about the value of virtual telemedicine visits to healthcare organizations, practitioners, and the patient community during this unprecedented crisis, taking time to consider key areas of potential exposure is essential to mitigate risk.