Telemedicine poses new, huge risks: Know what your docs are doing?
November 1, 1997 8 minutes read
Telemedicine poses new, huge risks: Know what your docs are doing?
Telemedicine is a technology that has been talked about for years, and for many facilities, it still is only a dream of the future. But for many others, telemedicine is already in use and exposing the participants to a new world of potential liabilities. As the risk manager, you must act quickly to keep your facility from falling prey to these new risks.
The American Society for Healthcare Risk Management (ASHRM) in Chicago considers the risks of telemedicine to be serious, not just theoretical. The group recently issued a monograph warning that even though the technology is in use across the country, there are many unanswered questions about the risks posed to health care providers.1 The author of the report, Katherine Tange-duPré, is project consultant with Aon Healthcare Alliance in Brentwood, TN. She studied the issue for ASHRM and tells Healthcare Risk Management that risk managers may be surprised by the severity of the potential liability from telemedicine. Using the latest technology to practice medicine may greatly complicate questions about interstate licensing, whether a doctor/patient relationship is created, and patient privacy. Many of those issues are unresolved, leaving you to figure out the answers as you go.
"Telemedicine is not just experimental now," she says. "It’s in use, and I suspect some risk managers don’t know just how much it is in use at their own hospital. Even if you’re aware of how much it’s being used, you may not know what risk issues it brings along with it. This can sneak up on you."
Telemedicine is a general term that can encompass all sorts of health care technology, from the fax machine to high-tech video and robotic hookups that allow a doctor to operate on a patient thousands of miles away. The American Medical Association’s Council on Medical Education defines it as "healthcare consultation and education using telecommunication networks to communicate information," as well as "medical practices across distance via communications and interactive video technology." Calif-ornia’s 1996 Telemedicine Law calls telemedicine "the practice of healthcare delivery, diagnosis, consultation, treatment, and transfer of medical data, and education using interactive audio, video, or data communication."
To address risk management issues, Tange-duPré concentrates on what she says is the most common use of telemedicine beyond the simple fax machine the use of video technology that allows a doctor to consult with another doctor at a remote location. One of the most common uses of this arrangement is for radiology consultations. You may encounter terms such as "teleradiology," "telepathology," "telecardiology," and "telepsychiatry" to describe the use of telemedicine in specialties. "That type of telemedi-cine is used fairly commonly, especially in the Western states like Montana and Utah because they are so rural that qualified medical personnel aren’t located in the smaller towns," she explains. "The smaller facilities try to hook into larger hospitals and work with the doctors there."
For instance, Iowa has linked all of its 99 counties through a 2,800-mile fiber optic system that will facilitate telemedicine consultations. The Health Science Center of the State University of New York at Syracuse is developing telemedicine capabilities for rural areas of upstate and central New York. On October 7, 1996, the Clinton administration announced a three-year experiment in which Medicare will pay for $42 million in telemedicine projects in rural areas.
Ann Abke, RN, risk management representative for Mutual Insurance Company of Arizona in Phoenix, also warns that the liability risks of telemedicine may take you by surprise. Abke is the author of a recent report that warns about the risks of telemedicine.2 "Telemedicine is a big concern because there are a lot of providers out there using telemedicine, but they don’t really think of it as something new," she explains. "Unlike some dramatic new technology that’s delivered to your hospital all at once, tele-medicine has just crept into your practice over time. It’s just grown over time and a lot of people are not aware of the risks that have grown along with it."
One of the most worrisome risk management issues related to telemedicine concerns whether a physician/patient relationship exists when a doctor consults over long distances. Telemedicine does not create a new problem here, but it exacerbates an existing one, Tange-duPré says. Radiologists long have run into the quandary of whether they are forming a physician/patient relationship by providing an opinion on films sent to them through regular mail. Malpractice attorneys often argue that the consulting radiologist does have a relationship with the patient, but the radiologist disagrees. That situation will apply with telemedicine, and Tange-duPré says it will crop up more often as telemedicine is used more widely.
"The idea of a consultation using video technology may seem even more like direct contact to some attorneys, so it is likely that the telemedicine consultation will result in more claims that a relationship exists," she explains. "Radiology is one of the biggest users of telemedicine, so the same problem transfers to the new way of consulting. If you use the telemedicine arrangement to consult in any other way that involves looking at a patient more directly, it’s even easier to argue that you’re forming a relationship."
Just as in cases that don’t involve telemedicine, the question of a physician/patient relationship will be most debatable when the consulting physician has no business relationship with the patient’s treating physician. When the physicians are both employees of a network that uses tele-medicine to connect distant providers, it probably will be easier to prove that a relationship exists. But questions remain: Does telemedicine by its very nature create more contact with the patient than a telephone call?
Another expert in the area of telemedicine liability risks cautions that you should not underestimate the likelihood that a physician/ patient relationship is created. Phyllis Forrester Granade, JD, is an attorney with the law firm of Kilpatrick Stockton LLP in Atlanta and a frequent speaker on risk management with telemedicine. She notes that there are inherent differences between a consultation using telemedicine technology and a simple phone consultation.
"If you’re not doing more than you would have done just by picking up the phone and asking the doctor a question, why are you using telemedicine technology anyway?," Granade asks. "Telemedi-cine tends to imply that you have more than a phone call, that the doctor is interacting in some way beyond just listening to a question posed by another doctor. That could be done with a simple phone call."
The more the doctors exchange information through telemedicine and interact with their patients, the more likely a physician/patient relationship exists, she explains. In some tele-medicine arrangements, for instance, the doctor may be able to listen to the patient’s heartbeat or view live readings from patient monitors. Even though the distant physician may not speak to the patient on the other end, a court might argue that he "examined" the patient and therefore created a relationship. (For more on the legal questions surrounding the physician/patient relationship, see story, p. 123.)
No case law exists to provide guidance
Patient privacy issues also will crop up. If one state must notify other parties regarding a patient’s HIV infection, and the other does not, which state rules apply? It is not as easy as saying you follow the rules of the state in which the patient resides.
There is no case law yet that directly involves telemedicine liability, Abke and Tange-duPré say. Other case law involving interstate medicine suggests that malpractice attorneys will take advantage of whatever state laws best serve their interests. If your state makes you a more attractive target than the physician in another state, you can bet you will be sued.
The good news is that most medical malpractice insurance already provides coverage across the United States, or even worldwide. But Tange-duPré points out that policies usually include a provision that excludes coverage for a willful violation of any law that carries criminal penalties. Since the unlicensed practice of medi-cine clearly is an unlawful act in most states, that means the injudicious use of telemedicine could leave a physician or facility without coverage in a malpractice case. (See p. 125 for more details on the legal issues surrounding telemedicine and interstate licensing.)
Telemedicine also could result in inadvertent violations of the Stark Amendment, Abke says. The violation can occur in a fairly obvious way if physicians are investors in the telemedicine project. But hospitals also may be seen as inducing referrals by providing telecommunications equipment to smaller facilities that then might be more likely to consult with the hospital’s doctors.
"Some facilities are building elaborate systems for using telemedicine, and it could be construed as enticement for some of the smaller facilities to come and use your facilities. Maybe you would be giving them some sort of deal, too," Abke explains. "That could be considered a Stark violation."
Abke also questions what would constitute patient abandonment for physicians and hospitals that had been providing services remotely through telemedi-cine. Of course, that would hinge on whether a physician/patient relationship had been established, she says, but it is conceivable that a community could claim your hospital 1,000 miles away had been providing necessary services and abandoned them when you ceased the telemedicine service.
"The doctor providing the consultation may not see it as abandonment at all because he didn’t have real contact with the patient and didn’t think any relationship had been established," Abke says. "But in fact, you may create a problem where the other provider and the patient think you’re following up on something and in fact, you’re not. The more you can explicitly state what you are and are not going to follow up on, the better off you are."
Remember that the distance afforded by telemedicine offers no protection from a malpractice case. Any mistake made using telemedicine poses at least as much of a liability risk as a mistake you make in person, Granade says.
While most telemedicine in use today allows doctors from different facilities to access patient records and discuss a case from a distance, other technology also directly involves the patient. Instead of just providing a means for showing an X-ray to a doctor thousands of miles away, telemedicine can be used to actually put the patient in front of a camera and a microphone so that the doctor can do a "virtual examination." Such uses of telemedicine are innovative, but they should make risk managers even more nervous.
"If you have a patient on camera, you can make a better judgment than just by depending on what the other party is telling you about the case. There’s a real incentive to take a look at the patient to improve the clinical outcome," Abke says.
"But that also goes a step further in creating the physician/patient relationship. It’s not at all clear if that does create the relationship, but attorneys certainly could argue that once you have actually seen and examined’ the patient, that creates an obligation that might not have been there otherwise."
Consider writing a new policy
Abke says it would be wise to develop a facility policy on the use of telemedicine, addressing the potential liability risks and implementing rules to minimize those risks. But she also says she’s never heard of a facility that has taken that step. The risks posed by telemedicine are so new and bewildering that most risk managers are doing well even to recognize them at this point, she says.
"Telemedicine has lots to offer the health care community, so we don’t want to get in the way and slow that down," Abke explains. "It’s very promising, but on the other hand, I don’t think most risk managers are aware of the can of worms they’re opening using this new technology."
References
1. Tange-duPré K. Telemedicine: Opportunities and Issues. Monograph: American Society for Healthcare Risk Management; July/August 1997.
2. Abke A, Mouse-Young D. Telemedicine: New technology = new questions = new exposures. J Healthcare Risk Management 1997; 3:3-6.
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