Do Virtual Patient Visits Increase Your Risk of Being Sued?

Neil Chesanow


October 22, 2014

In This Article

Know Your State Regulations

If you plan to join a preexisting virtual network, it may already have established rules on what you can and cannot do during an online patient visit based on regulations of the states in which the network operates. However, this may not be universally true. And if you seek to establish an online presence for your ACO, PCMH, or independent practice, as more and more doctors are doing, the burden of understanding and complying with state telemedicine regulations is on you.

To make this easier, online resources are available. The American Telemedicine Association, for example, issues state report cards, grading each state from A to F, on the reasonableness of its telemedicine practice standards, licensure requirements, and policy on Internet prescribing. A PDF file with pertinent details can be downloaded from the American Telemedicine Association website. The document is intended for policymakers in Washington, not physicians, but any physician who is considering virtual visits with patients, and who is concerned about the malpractice risk, would benefit from perusing it.

Also worth checking out is the Center for Connected Health Policy's interactive US map detailing telemedicine law and policies by state. Click on any state to learn how telemedicine is defined; reimbursement issues; email, phone, and fax policies; regulations for e-prescribing as part of a virtual visit; regulations for remote patient monitoring; rules for obtaining informed consent from patients; details on cross-state licensing agreements for both physician-patient interactions and physician-physician consultations; and other regulatory issues.

Speaking of informed consent, many states require physicians to obtain it from patients before a virtual visit begins. This is commonly done by having the patient read and click their agreement on an electronic document analogous to that often required before you can install new software on your computer. The document should define for the patient what telemedicine is, including its benefits and limitations, and should outline both the physician's and the patient's responsibilities as part of a virtual visit. Many versions of this verbiage are available online. West Virginia University's is an example. You can view it here.

Is the Risk of Being Sued Apt to Grow?

Other liability concerns are likely to surface in the near future. Take remote monitoring of patients with uncontrolled chronic conditions in their homes with the use of biometric devices that wirelessly transmit real-time data to physicians. An increasing number of hospitals are now doing this with their cardiac patients to reduce the number who require readmission within 30 days of discharge—which, if they are Medicare patients, incurs onerous financial penalties.

In the next year or two, it is expected that more ACOs—especially those that take risk—will follow suit, because they will be economically incented to improve patient outcomes, making tight monitoring of at-risk patients at home a must.

This raises a host of legal issues. Who's responsible for the monitoring equipment? The patient? The patient's doctor? The visiting nurse, if there is one? The ACO, if one is involved? The hospital, if it runs the ACO? The virtual network, if the doctor is a member? The device manufacturer? Some combination of these?

How accurate are the data the device generates? Will the patient know how to use the device properly? What if the patient drops it on the floor or spills coffee on it, and as a result the device sends the monitoring doctor erroneous data? What if, say, a wireless ECG sends real-time data remotely to a monitoring physician, indicating that the patient is having an adverse event at 2 AM, but the physician doesn't view the data until 8 AM when he arrives at the office?

"There are significant liability issues associated with the use of this kind of technology," Francis says. "There are always liability issues associated with the use of technology—in its performance or malfunction—in the hospital or office setting. The expansion of that technology into the outpatient or home setting will only increase the potential for liability issues to arise. Those issues will need to be dealt with, both in the informed consent process as well as in the courtroom."


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