Abstract
[Editor’s note: Part 1 of this Guest Editorial was published in the October/November 2015 issue; part 2 was published in the December 2015 issue.]
Privacy and security measures must be in place that are equivalent to those required for face-to-face encounters and must be documented to ensure confidentiality and integrity of any patient-identifiable information. Transmissions—including patient emails, prescriptions, and laboratory results—must be secure within existing technology. All patient-physician emails, as well as other patient-related electronic communications, should be stored and filed in the patient’s medical record consistent with traditional record-keeping policies and procedures.
Online services used by physicians in the provision of telemedicine should clearly disclose: (1) the specific services provided; (2) contact information for the physician; (3) licensure and qualifications of physicians and any other associated providers; (4) fees for services and means of payment; (5) financial interests (suggestive of potential conflict of interest) in any services, products, or other information provided to a patient by a physician during a telemedicine interaction; and (6) appropriate uses and limitations of the telemedicine site, including appropriate patient response to presumed emergency health situations.
Online services used by physicians in the provision of telemedicine also should clearly disclose: (7) appropriate uses and anticipated response times for emails and other electronic communications transmitted by telemedicine; (8) to whom a patient’s protected health information may be disclosed and for what purpose(s); (9) rights of patients with respect to protected health information; and (10) description of information collected and any passive tracking mechanisms used.
Online services should provide patients with clear mechanisms to: (1) access, supplement, and amend patient-provided personal health information; (2) all patient feedback regarding the site and the quality of the information/services provided/received by the patient; and (3) a mechanism by which a patient can register complaints, including information regarding the filing of a complaint with the applicable state medical/osteopathic board(s).
Online services must have accurate and transparent information about the website owner/operator, location, and contact information, including a domain name that accurately reflects this identity.
Advertising and promotion of goods or products from which the physician receives direct remuneration, benefits, or incentive (other than the fees charged for the medical care services) is prohibited. Notwithstanding, online services may provide links to general health information sites to enhance patient education; however, the physician should not benefit financially from providing such links or from the services or products marketed by sites accessed through these links. When providing links to other sites, physicians should be aware of the implied endorsement perceived by the patient of the information, services, or products offered by such sites.
The maintenance of preferred relationships with any pharmacy is prohibited. Physicians shall not transmit prescriptions to a specific pharmacy or recommend a pharmacy in exchange for any type of consideration or benefit from that pharmacy.
When the prescription of medicines is involved in the telemedicine interaction, measures must be implemented to uphold patient safety in the absence of a traditional physical examination. Such measures should guarantee that the identities of the patient and the provider are clearly established and that detailed documentation for the clinical evaluation and resulting prescription is both endorsed and retained. Measures to ensure informed, accurate, and error-prevention prescribing practices are encouraged.
To further ensure patient safety in the absence of physician examination, telemedicine should limit medication formularies to those that are deemed safe by the medical board of the appropriate venue within which the care is provided.
Prescribing medication, in person or via telemedicine, is at the sole professional discretion of the treating physician. The indication, appropriateness, and safety considerations for each prescription provided during a telemedicine encounter must be evaluated by the prescribing physician in accordance with current standards of practice of the relevant venue and carry the same professional duty and accountability as prescriptions delivered during an in-person encounter. However, where such measures are upheld and where the appropriate clinical evaluation is carried out and adequately documented, the physician may exercise his/her judgment and prescribe medications as part of the telemedicine encounter.
Similar to in-person medical care, malpractice claims can be brought against a referring or treating physician involved in a telemedicine encounter. The issue of “forum shopping” can be relevant if the provider is located in a state different from where the patient lives. For in-person encounters, most states allow a claim to be made either where the patient received care or where the defendant’s office is located; telemedicine can significantly expand the scope of venue exposure. A plaintiff could require that the telemedicine consultant defend against the claim in the courts in the state where the patient resides, which may be a significant distance from the location of the defendant and thus significantly increase the cost of defense. Some states require that any malpractice claims brought by residents of these states must be brought within their state (e.g. Montana, North Carolina, etc.).
The statute of limitations for plaintiffs to bring actions also varies significantly by state; a physician who practices within a state with a short statute of limitations is not protected by those limitations but may experience increased exposure when providing telemedicine care to patients in states with longer statutes of limitations.
While many states (and many specialties) are gradually moving toward a more national concept of standard of care, some regions and states still use a “local” standard of care. These differences may be significant, and a physician practicing in a distant location may be unaware of these local variations and the significantly different duty that results from them.
In summary, telemedicine greatly expands the capacity of physicians to consult with and about their patients and can increase the numbers of patients that can access and receive care from an individual physician, but telemedicine also carries significant liability pitfalls that both requestors of and providers of telemedicine services should understand.