Telehealth Brings Malpractice Risks, Says Report; More

Wayne J. Guglielmo, MA

September 28, 2020

The risks of telemedicine were summarized in a report released by The Doctors Company, the nation's largest physician-owned medical malpractice insurer.

The risks include the possibility of suboptimal diagnoses and treatments, along with the added threat of failure to refer. These issues raise the very real possibility that a rise in telehealth could lead to an increase in medical liability and an erosion of the doctor-patient relationship. Other risks involve confidentiality issues, reimbursement issues, and restrictions on online prescribing in some areas.

It's still difficult to assess whether or by how much liability risks will tick up in the future, the report's authors say. Over the past 15 years, while telemedicine-related claims have increased as more doctors have turned to virtual healthcare, the proportion of such claims within The Doctors Company database has remained relatively small.

Of filed claims, The Doctors Company found in a separate study that diagnostic errors are the most common allegation in telemedicine-related claims. In that study of claims from the company's database, 71% of 28 telemedicine-related claims were related to diagnoses (especially a failure to diagnose cancer), 11% were associated with mismanagement of treatment, and 7% were related to improper management of a surgical patient. Other allegations included improper performance of treatment or procedure and improper performance of surgery.

There's also the threat of the unknown. The COVID-19 pandemic is likely to change things. As both doctors and patients use telehealth more frequently and in new ways, "this may result in claims of types we have not yet seen; the results of those claims may take years to emerge," say the study's authors.

The authors say that doctors should adopt techniques and remote protocols — such as the Ottawa knee rule and ankle rules and the Roth score for preliminary assessment of shortness of breath — to protect both their patients and themselves. Notes the report: "Many medical societies have begun offering education on remote exam techniques specific to their specialties."

More than 4 out of 10 (42%) Americans say they've used video visits during the pandemic, according to a Harris poll. This is a trend that's likely to continue as practices reopen and virtual care becomes increasingly more common. But as physicians conduct more virtual visits, technology-related malpractice risks are expected to grow.

Can Physicians Protect "Privileged Information"?

Healthcare providers who wish to share patient safety data — including the reporting of medical errors — voluntarily and confidentially may have hit a setback with a recent appellate court decision in Pennsylvania. The decision addresses the latest attempt to set limits on provider safeguards that are spelled out in the federal Patient Safety and Quality Improvement Act (PSQIA), as reported by MedCity News.

The PSQIA, which Congress passed in 2005, was intended to improve overall safety in the healthcare system. Toward that end, it encouraged healthcare providers to share patient safety data — including the reporting of medical errors — voluntarily and confidentially, thereby mitigating their fear of legal repercussion.

There's a hitch, however: For doctors, hospitals, and other healthcare workers to be shielded under the law, they must strictly adhere to federal PSQIA rules that define what constitutes "privileged" information. Should they claim more exemptions than they're entitled to, either unintentionally or deliberately, courts have shown themselves quite willing to intervene, at times granting plaintiffs access to information they might not otherwise have gotten their hands on.

This is precisely what happened in Pennsylvania in the suit Ungurian v Beyzman. Plaintiff Susan Ungurian claimed that while carrying out a procedure to remove her son's kidney stones, doctors at Wilkes-Barre General Hospital acted negligently, which resulted in her son's "permanent incapacity."

In her claim against both the doctors and the hospital, Ungurian sought a variety of documents, including a number of patient safety–related records and reports.

The hospital responded by asserting a twofold defense: (1) the right to withhold a pair of specific documents under the federal PSQIA, and (2) the right to withhold all documents under the state Peer Review Protection Act (PRPA), a 1974 Pennsylvania statute that shields the process by which providers evaluate each other's patient care performance.

The trial court disagreed with the defendants, however. They pressed their arguments before the three-panel appellate court, which ultimately also sided with the plaintiff.

On the question of the federal PSQIA protections, the panel ruled that the hospital had skipped an essential step when it failed to show that the documents in question were prepared for the sole purpose of reporting to a patient safety organization, a critical component of the PSQIA law.

On the second question — the hospital's assertion that it could withhold information under the state PRPA — the appellate court was similarly dismissive. Using a variety of arguments, it showed that for each of the documents being contested, the hospital had failed to meet the exacting standards set out in the PRPA, some of which had already been clarified by recent case law.

The ruling isn't likely to be the last word on the issue. In Pennsylvania and elsewhere, courts will almost certainly continue to assess where assertions of privileged data end and plaintiffs' rights begin, resulting inevitably in more disputes down the line.

Fractured Vertebra Results in Wrongful-Death Suit

A Georgia woman has claimed that an interventional radiologist's negligence led to her husband's death, according to a report in HealthImaging.

In May, Byung "Ben" Oh was taken to Wellstar Atlanta Medical Center after he fell off a ladder and fractured a vertebra in his back. Following his surgery, his doctors elected to place a suprapubic catheter in his bladder in order to control for possible urinary retention. Typically, this is a safe procedure, whether involving the placement of small-bore or large-bore catheters.

In conducting the procedure, however, the interventional radiologist missed Oh's bladder and instead placed the catheter in his abdomen. The error caused "enormous" amounts of chyle, a milky lymphatic fluid, to drain from his abdomen. This in turn led to organ failure, sepsis, and, eventually, death.

In her suit, Oh's wife, Myung, alleged that the interventional radiologist didn't take the necessary steps to confirm the catheter's placement, including ordering an imaging study. Oh also alleged that her husband's doctors didn't administer his prescribed heart medication, leaving him with an irregular heartbeat and at greater risk for infection.

"Mr. Oh's death was completely avoidable if only his care providers paid attention and used some critical thinking," said Lloyd Bell, the plaintiff's attorney.

Myung Oh is seeking compensatory damages for medical costs, as well as economic and noneconomic losses.

The content contained in this article is for informational purposes only  and does not constitute legal advice.  Reliance on any information provided in this article is solely at your own risk.

Wayne J. Guglielmo, MA, is an independent journalist based in Mahwah, New Jersey.

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