Chapter 22: Telemedicine

INTRODUCTION

There is no single or universal definition of telemedicine, but in general, it means the practice of medicine by electronic communication or other similar means by a health care professional in one location whose patient is in another location, with or without an intervening health care professional.

The primary legal and regulatory issues surrounding telemedicine from the physician’s perspective include the following:

• Is telemedicine a treatment?

• Does it have a separate standard of care?

• Can a patient-provider relationship be established via telemedicine?

• Are there prescribing limitations related to telemedicine?

• Is consent required for telemedicine?

• Cross-state licensing issues: When is an out-of-state license needed?

  • Consultation exemptions

  • Reciprocity and compacts

STANDARD OF CARE ISSUES IN A TELEMEDICINE CONTEXT

Because telemedicine is not a treatment per se, but rather a treatment delivery mode or method, it does not really have a separate standard of care. For example, the Washington Medical Commission has stated in its telemedicine guidelines that its “practitioners using Telemedicine will be held to the same standard of care as practitioners engaging in more traditional in-person care delivery, including the requirement to meet all technical, clinical, confidentiality and ethical standards required by law.”¹

Elements of professional negligence claim

A medical malpractice claim is simply a professional negligence claim brought against a health care provider. The structure of a malpractice claim may vary slightly from state to state, but the basic elements of such a claim, of which establishing a failure to meet the standard of care is one and all of which the plaintiff/patient has the burden of proving, are as follows²:

• The health care provider and the patient had established a patient-provider relationship.

• The health care provider failed to meet the standard of care (usually defined as the degree of care and skill expected of a “reasonably prudent” health care provider acting in the same or similar circumstances).

• The health care provider’s failure to meet the standard of care “proximately caused” the patient’s injury and/or related damages.

Establishing a patient-provider relationship

As noted earlier, a threshold element in a medical malpractice claim that must be established by the plaintiff is the presence of a patient-provider relationship. Most state medical boards have taken the position that a patient-physician relationship must be established for telemedicine practice (presumably meaning that establishing this element would be relatively easy for a plaintiff in a telemedicine medical malpractice case). Until not that long ago, however, some states did not allow this relationship to be established via telemedicine. The requirement to establish the relationship in person is no longer present in any state (except in some prescribing circumstances; see next section). A common admonishment in state medical board telemedicine policies and/or regulations is that using a questionnaire to establish the relationship and ...