Applying general case law to telemedicine liability
There have been only a few telemedicine malpractice cases so far, and all have been settled before trial, says Phyllis Forrester Granade, JD, an attorney with the law firm of Kilpatrick Stockton LLP in Atlanta and a frequent speaker on the issue.1 The best answers to some of the liability questions must come from applying general case law to telemedicine.
One of the thorniest questions is whether telemedicine affects the formation of a physician/patient relationship. Granade offers this advice to Healthcare Risk Management readers:
The relationship could exist, but current case law tends to favor the idea that the patient must have some sort of actual contact with the doctor for a relationship to exist. The relationship usually doesn’t exist when a consultation is between physicians and the patient isn’t specifically identified to the consulting doctor, but telemedicine can complicate the matter. In telemedicine exchanges, it’s more likely that the consulting doctor has reviewed the patient’s record and maybe even performed some type of exam.
The Texas Court of Appeals determined in Lopez v. Aziz (852 S.W.2d 303 [Tex. App. 1993]) that a physician/patient relationship did not exist when a consulting obstetrician spoke by telephone with the patient’s regular physician. In explaining why the relationship didn’t exist, the court emphasized the patient was never contacted or examined by the consulting physician, and the patient’s chart hadn’t been reviewed.
That ruling frequently is cited by courts in other jurisdictions and may offer a partial liability shield for telemedicine users. The defense would be based on the idea that the patient’s referring physician retains control and responsibility for the patient’s treatment.
On the other hand, another Texas case showed that a physician/patient relationship can exist because the consulting physician evaluated the patient’s status and made a diagnosis or recommendation. In Wheeler v. Yettie Kersting Memorial Hospital (866 S.W.2d 32 [Tex. App. 1993]), an on-call physician received information from a nurse about a woman in labor and determined that it was safe to transport the woman to another facility. While en route, the woman went into labor, and the baby died. The court determined that the relationship existed, mainly because the doctor gave approval for the transfer, a move directly affecting her treatment. This appears to be distinct from simply exchanging information with another physician, who then makes the decisions about treatment. The same distinction probably will apply to any malpractice charges involving telemedicine.
"The safest answer is that, yes, telemedicine does create a physician/patient relationship," Granade says. "It depends on how much you’re involved with the patient’s care, but the use of telemedicine usually means you’re involved in doing more than just talking to another doctor. There’s no clear answer, but don’t think of telemedicine as just another phone call."
Reference
1. Granade PF. Medical malpractice issues related to the use of telemedicine: An analysis of the ways in which telecommunications affects the principles of medical malpractice. North Dakota Law Review 1997; pp. 65-91.
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