Wednesday, January 16, 2019

Liability Risks of Telemedicine: State Standards Among Considerations

by Dustin Shaver, Vice President of Risk Management at NORCAL Mutual Insurance Company

Telemedicine utilization growth continues at an impressive rate. According to the FAIR Health database (the largest repository of private healthcare claims), telemedicine use in the U.S. nearly doubled between 2007 and 2015. Over half of all U.S. hospitals now use some form of telemedicine, according to the American Telemedicine Association. Telemedicine is widely credited with improving patient access, cost efficiencies and quality of care. This and increasingly favorable state and federal telemedicine legislation may explain the rapid increase in its utilization. Despite the advantages, telemedicine has liability risks, such as privacy, security, patient confidentiality, credentialing and misdiagnosis due to a lack of continuity of care. Additionally, the soft skills that may come naturally in a personal patient encounter may need to be adjusted for electronic encounters. Telemedicine providers should evaluate their “webside” manner. For example, equipment needs to be positioned to simulate direct eye contact; active listening cues may need to be exaggerated; posture and facial expressions may need adjustment and sessions must be started and ended appropriately. Seemingly minor electronic communication strategies can significantly affect the success of a telemedicine encounter.

Physicians who adopt telemedicine also have administrative considerations that may pose a challenge and liability risk. For instance, professional licensure portability and individual state mandated practice standards present major challenges. There are significant differences among state telemedicine laws and the laws are constantly changing. In the 2016 legislative session, for example, over 150 telemedicine-related bills were introduced by 44 states. The issues addressed by these bills ranged from informed consent requirements to online prescribing parameters to Medicaid reimbursement. Physicians should be aware of the telemedicine laws in their own state and in the state of every patient in their telemedicine practice. Understanding the laws is paramount to understanding the medical liability risks that may be involved in the various different stages of providing telemedicine.

Medical professionals providing virtual visits must work harder to reduce practice liability exposures. To help enhance patient safety and reduce risk:

  • Understand that individual state telemedicine practice laws vary from state to state.
  • Consult with your healthcare business attorney as needed.
  • Check your professional licensure portability to ensure that you are licensed to practice in the jurisdiction where the patient resides.
  • Consult with your medical practice liability insurance company to ensure that your policy covers all jurisdictions where you plan to provide services.
  • Be aware of online prescribing regulations that vary across jurisdictions.
  • Comply with all applicable privacy and security standards for the secure transmission of protected health information between patient, provider and payers.
  • Standardize telemedicine patient visits to help minimize the potential for error and to support good communication practices.
  • Take care to ensure that the primary care physician and patient relationship is not fractured with ongoing use of telemedicine consultation.

Telemedicine is an emerging practice and the rising rate of adoption by both physicians and patients is an indication of its value. As with all advancement in the field of medicine, the advantages of adopting a new way of practice should be considered carefully and risks assessed. It is important to consult with your medical professional liability insurance provider on your individual policy to ensure you are adequately covered for the scope of practice, and consult with your business attorney as needed.

NORCAL Mutual has a team of risk management specialists available to consult and assist policyholders with the assessment of their practice and to help identify and address risk exposures. To learn more about managing telemedicine risk exposure, NORCAL policyholders can access the September 2016 Claims Rx entitled “Telemedicine Risk Management,” which is available through MyACCOUNT on the new MyNORCAL® mobile app.

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