Document, use disclaimers to avoid sticky issues
The risks that come along with telemedicine may not be completely avoidable, but some steps can help lessen the chance of falling prey to the hazards. Here are some words of advice:
• Know what your doctors are doing with telemedicine. It goes without saying that risk managers should know what’s going on in their facilities, but telemedicine is the type of technology that can sneak in without a formal assessment of the risks. For starters, risk managers should find out precisely how telemedicine is or might be used, says Katherine Tange-duPré, a project consultant with Aon Healthcare Alliance in Brent-wood, TN. You should find out which doctors are using telemedicine, exactly what services are provided or obtained through the technology, and which other states are involved. Then you have to look into the licensing requirements of each of those states and determine whether your doctors can safely practice telemedicine there.
"Be prepared for a lot of work," she says. "Each state may have different rules, and there’s no easy way to determine what will work with each one."
• Include a disclaimer to help you avoid a physician/patient relationship. Any telemedicine work should include a statement that the consulting physician is providing an opinion only to the other physician, not to the patient. State clearly that this is not a method of getting a second opinion for the patient. "I think the disclaimer would be useful, but I don’t know if it would be foolproof," Tange-duPré says. "It at least helps remove the physician one step from the physician/patient relationship. The goal is to keep the patient at arm’s length if at all possible."
• Document the telemedicine event carefully, possibly including a videotape. Good documentation is important in showing that the technology was used as a means for two physicians to discuss clinical material, not as a means to bring the second physician in for treating the patient. The documentation should include details about who requested the telemedicine event, how it was arranged, what information was exchanged, and when it took place. Much of that information can be documented accurately by videotaping the telemedicine exchange and keeping that tape as part of a permanent record.
"The more you document this, the better," Tange-duPré says. "You need to make it very clear what happened and what didn’t happen, and a videotape can do that."
The videotape is a good option, but it is not entirely necessary, says Phyllis Forrester Granade, JD, an attorney with the law firm of Kilpatrick Stockton LLP in Atlanta. The fact that the consultation was conducted electronically does not necessarily mean you need an electronic record of it, she says. A good rule is that you should document the tele-medicine event at least as well as you would document any other event. So if your doctor typically would document a face-to-face consultation by dictating notes to be put in the patient’s record, that is fine for documenting the telemedicine event too.
"If you want to keep videotapes, that’s fine too," she suggests. "But then you probably will want to establish a policy requiring that the telemedicine always be videotaped and maintained as part of the file. You don’t want a situation where you have some of them videotaped and some not. That wouldn’t look good."
• Inform the patient that you are seeking a consultation through telemedicine. This may seem counterintuitive to the idea that a simple consultation through telemedicine does not create a physician/patient relationship for the consulting doctor, but the patient should be informed, says Ann Abke, RN, risk management representative with Mutual Insurance Company of Arizona in Phoenix. Patients should be told that you are seeking information from another doctor at a remote location and that this is another type of information exchange that goes on between physicians routinely. By informing the patient, you may be able to prevent any surprises later on if the patient is unhappy and decides to research litigation opportunities. The patient’s attorney may see the "secret" consultation as a strategic opportunity, even if there was nothing unusual about it, other than the use of new technology to communicate.
That type of informed consent is required for telemedicine in California, Granade notes. California became the first state to require specific consent for nonemergent telemedicine last year, with Arizona following closely with a similar law and Oklahoma considering one.
The consent should include any possible shortcomings of the telemedicine approach. Two-way video, for instance, is never as good as having the doctor and patient in the same room. The patient should be told that the video image may not offer a completely accurate picture to the doctor, and you should note that the consulting doctor will be unable to use some senses, such as touch and smell, that might be beneficial in a normal exam.
It’s fair to note in the same document why the telemedicine approach is being used, Granade says. The informed consent document can note the limitations but list the benefits to the patient, such as avoiding long-distance travel.
• Remind physicians not to work through technical glitches. Any physicians using telemedi-cine should be reminded that it requires a clear connection to be safe and effective, Abke says. With telemedicine, much of the communication technology is new and pushing the limits of quality, so that means any day’s hookup may or may not be crystal clear. Some flaws in quality are expected, but risk managers should not allow clinical consultations when the parties are struggling to understand each other. The risk is too great that critical words or data will be missed or misunderstood.
That rule should apply to any use of technology in health care, but with telemedicine, the risk may be greater that doctors will try to work through technical glitches. The same doctor who readily would end a cellular phone call because the connection was bad might feel compelled to work through a bad telemedicine connection because he is such a strong proponent of the concept.
Remember that telemedicine creates an obligation to maintain the equipment properly. Unlike the telephone, for instance, telemedicine technology is considered the responsibility of the providers. Any failure that compromises patient care could be cause for action.
• Encourage a sense of formality. Telemedi-cine can lead to an informal approach, either because people overcompensate for feeling nervous on camera or because they are so techno-friendly they enjoy using technology to see colleagues. Any lax attitude should be discouraged and replaced with a more formal approach, Granade says. "You need to make sure that you treat a telemedicine consultation with the same professionalism and seriousness that you would if you were standing in the same office and talking to each other," she says.
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