Take care: Technology raises liability questions
Plan carefully to reduce risks
Health care professionals nationwide have turned to Internet and telemedicine applications to fill service gaps in the health care delivery system. There is little doubt that these types of remote patient/provider interaction lead to timely interventions, as well as patient convenience and satisfaction. Whether case managers and providers contact patients via e-mail for a simple appointment or medication reminder or conduct home visits using telemedicine systems, however, these new methods of health care communication carry as much risk as promise, says Joan Bristow, RN, MA, vice president of risk management for The Doctors’ Company, a health care professional liability insurer in Napa, CA.
There are many questions health organizations should explore before adopting any new methods for interacting with patients, whether by telephone, video monitor, or the Internet, says Bristow. For example:
- Who has responsibility for the image and the equipment? "If equipment fails during a telemedicine visit, who is responsible for that failure? Is it the provider? Is it the payer who has covered the service? Is it the equipment manufacturer? These are issues that should be established," she says.
- What safeguards are available in the case
of transmission failure? Are there alternatives? Have participants taken steps to retry or reschedule transmission?
- Who owns the medical record created? "Fathers have been videotaping births in the delivery room for years, but if there is an incident in the delivery room, who owns the videotape? It’s quite clear the tape goes home with the family, and that can be an issue. The tape can be altered, and quite simply, if a lawsuit results, the plaintiff has access to evidence that the defense doesn’t. How do you prepare a defense in that case?"
Before you begin a telemedicine program or Internet application, determine who owns the medical record that will be created and how it will be stored, she urges.
- Can the medical record created be stored and reproduced, if necessary? Before you replace outdated technology, think about the medical records you have made with the old system. Can they be
reproduced on the new system, if necessary?
- Can the transmission be guaranteed to be confidential and private? "I think it’s fair to say, No.’ However, you can take steps to provide as much privacy as possible," says Bristow.
- Where does the responsibility for follow-up belong? "The majority of lawsuits we see are due to a lack of follow-up. Patients fall through a hole, due to system failure. Make sure the patient and the provider are clear about how, when, and who will follow up with the patient."
- Is there a defined geographical area? "All
50 states have a different set of licensing guidelines," she says. "You must be licensed where you are practicing, and you should not practice where you are not licensed."
In addition, some states require providers to contribute to patient compensation funds, she notes. "Pennsylvania has a patient compensation fund. If a doctor in California is practicing medicine over the Internet and the patient lives in Pennsylvania, we’re in trouble if the patient sues in Pennsylvania courts and that doctor has not contributed to the patient compensation fund. It means we probably have no defense, and we urge the doctor to settle."
Internet and telemedicine applications also raise issues concerning community standards, explains Bristow. "If you go to a doctor in a small town in Texas who offers you a telemedicine referral to a major teaching hospital, and another patient goes to a doctor across the street who can’t offer that telemedicine referral, has the standard of care in the community changed?"
- What constitutes patient abandonment? "It’s not always clear in telemedicine when the patient relationship begins and ends," she notes. Patient abandonment rules vary by state, just like licensing requirements.
- Will use of the new technology increase patient volume? "When you look into telemedicine and Internet applications, you have to consider whether or not increased patient volume will increase the potential for medical errors," she says.
- How will informed consent be obtained? "Health care providers have a responsibility not only to go through the process of informed consent, but also to assess the patient’s understanding of that consent. Many patients will be unfamiliar with telemedicine. Make sure they know what to expec; the limitations also must be clear," she says.
"The trick to telemedicine is communication," Bristow concludes. "We are dealing with a very well-informed public. The average consumer knows a great deal and has access to more information than ever before. Providers must be more careful than ever how they interact with their patients using new communication methods."
In general, Bristow says, The Doctors’ Company recommends that providers use communication methods such as e-mail with discretion. "For example, we recommend that physicians only use e-mail to communicate with patients they’ve known for many years and know everything that is likely to affect that patient. We suggest that they not communicate with new patients via e-mail. If it’s a new patient, how can the physician know whether the patient will answer questions truthfully or accurately?" (See box, p. 167, for a sample health care Web site disclaimer.)
In addition, she suggests that providers set a specific time for responding to patient e-mail. "We also suggest that providers tell patients that e-mail will be answered between certain hours of each day so that patients don’t send an e-mail message early in the morning and expect it to be answered immediately. And, of course, document every provider/patient communication that is sent out via the Internet. E-mail communications should become part of the medical record."
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