Do Virtual Patient Visits Increase Your Risk of Being Sued?

Neil Chesanow

Disclosures

October 22, 2014

In This Article

What About Smaller Networks and ACOs?

Major national networks such as American Well, MDLIVE, and Dallas, Texas-based Teladoc are multimillion-dollar enterprises with other multimillion-dollar businesses as clients. Because they have high exposure, they are under intense scrutiny by state regulators and medical boards and have the legal resources to ensure that they comply with state regulations governing telemedicine transactions.

But they are no longer the only players in town. Smaller, less-visible virtual networks at the state, regional, and national levels are springing up across the country. Accountable care organizations (ACOs), patient-centered medical homes (PCMHs), and independent physician practices are also increasingly establishing online presences, either by leasing space on preexisting networks or by hiring videoconferencing technology providers to add virtual-visit functionality to their practice websites.

"It's really the Wild West out there in some of these cases," Dr Antall observes. "I can't believe how little oversight there is on some of these doctors. Those are the programs I believe will have trouble with malpractice."

While offering online consultations to patients isn't distance-dependent—from a purely technological perspective, a physician in Florida can just as easily conduct a video visit with a patient in Tacoma, Washington, as she can with a patient in Tampa or Miami—every state has different rules for the conduct of video visits. Even the legal definition of what telemedicine is varies widely from state to state. Whether these often-unclear regulations are understood and correctly followed by new telemedicine startups that operate under state radar is anyone's guess.

"One of the biggest problems is on the licensure side," notes Robert Francis of The Doctors Company. "That can create coverage issues. Each state develops its own rules as to where the physician must maintain a license in the delivery of telemedicine services. Most states require the physician to be licensed in the state where the patient is located. That is going to become more and more of a problem as you have national telemedicine organizations hiring physicians from all over the country and providing services."

ProAssurance's Howard Friedman expresses similar concerns. "In most states, there have not been any modifications to the law regarding telemedicine practice," he says. "You still are dealing with law that requires a physician to be licensed to treat patients in a given state. So the question is: Where is the treatment being rendered?"

Some states do have reciprocity agreements that let out-of-state physicians practice telemedicine with their residents. But in no state is there automatic reciprocity as there is with, say, state drivers' licenses.

For an out-of-state doctor to virtually consult with patients in New Mexico, for example, the doctor must complete a telemedicine application that includes work history, hospital affiliations, malpractice coverage, disciplinary actions, references, and more; pay a $400 fee; submit an "Application Oath" that includes a color passport-quality photo taken within the past 6 months; and have verification of licensure sent to the New Mexico Medical Board directly from his or her own state medical board.[2]

About the only thing an out-of-state doctor doesn't need to do to consult with New Mexico patients virtually is take a state licensing exam.[2] Other state reciprocity agreements, where they exist, are similarly arduous to comply with. According to a 2010 survey, 16.8% of physicians have two active licenses but only 5.9% have three or more.[3] This is undoubtedly why.

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