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5 Major Medicolegal Risks in the Telehealth Era

Expert Witness: Vipul Kella, M.D., MBA. FACEP
COVID-19 saw an explosion in the adoption of telemedicine across the country. While it is a great new option for patients to access medical care, stakeholders need to be aware of major medicolegal risks.

Here are 5 major medicolegal risks in the telehealth era:

1. Telemedicine is Now A Mainstay of Medical Practice

One of the positive outcomes following the pandemic was the explosion of the use of telemedicine across hospital systems and medical practices. Telemedicine offers a fast, convenient, and cost-effective way for patients to access medical care. It is especially valuable in underserved areas, where medical access may be difficult, or with patients that have chronic medical conditions or behavioral health diseases where regular in-person visits may not be necessary. Telemedicine services are now
evolving to even more sophisticated technologies, such as the use of wearables for remote patient monitoring, or AI technologies to predict patient behavior and risk. According to the AMA, 85% of physicians said they were currently using telemedicine. While telemedicine adoption continues to accelerate and evolve, many areas in the digital space pose major medicolegal risks.

2. Incomplete Examinations from Video Visits

One shortcoming of video visits is the limitation by which a medical provider can perform a physical exam. While low acuity, urgent-care type visits often are very suitable for video visits, more complex problems more often do require a physical examination to arrive at an accurate diagnosis. Reliance on video visits may lead to incomplete exams, increasing the likelihood of misdiagnosis and a medical malpractice case. For example, if a patient complains of abdominal pain during telehealth, it will be difficult to arrive at an accurate diagnosis without a proper physical examination. A pre-pandemic analysis by a medical professional liability firm calculated that nearly 70 percent of telehealth medical malpractice claims were related to diagnostic issues — either missed diagnosis or misdiagnosis.

3. Physician-Patient Relationships and Scope of Practice

Simply doing a video call from a private phone could put a provider at significant risk. In most states, there must first be an established patient-physician relationship with an in-person exam before telemedicine visits can be scheduled. In addition, providers must also obtain informed consent from patients before providing telemedicine services. Informed consent requires a discussion about telehealth technology and an overview of privacy and security considerations, among other topics. States also vary widely on how they define “scope of practice” with some states being quite liberal in allowing physician assistants and nurse practitioners to practice telemedicine independently, while others require direct supervision by or direct care provided by a physician. Finally, state licensure also is a major consideration. Multiple state licenses may be required to be obtained and maintained by a provider if they will be providing care across state lines or within a particular region.

4. Privacy and Security Safeguards

Tech-based solutions are always open to malware risk and cyber threats. This is especially important when private health information (PHI) can be accessed during an attack. Common practices such as using a private email account or using a personal computer to store data place both patient and provider at significant risk. Optimizing security and compliance risk now also can minimize malpractice risk as well. Telemedicine has now extended beyond video visits to remote patient monitoring, another telehealth industry that monitors patient physiologic parameters through the use of devices and wearables. Providers and RPM companies need to ensure that the data being captured is solely for medical monitoring or the patient and that additional data points are not being captured which can be leveraged.

5. Fraud and Kickbacks

Finally, healthcare fraud in telemedicine remains high, with the DOJ recovering over 4.5B in fraud loss in 2021 alone. Many cases involved federal provisions that were exploited by companies during the COVID-19 pandemic, and involved issues such as upcoding time and complexity of medical care rendered, billing for services not rendered, and elaborate kickback schemes. One of the largest federal cases involved a scheme involving a medical device company that paid kickbacks to physicians working for telemedicine companies to induce them to prescribe orthopedic braces that were not deemed to be medically necessary. Those involved in the schedule billed Medicare over $1.7 billion for the braces, which paid out $900 million.

While the innovations in telehealth have been a boon to patients by improving access and convenience to medical care, medicolegal issues will continue to expand in this digital health space. As the field has cemented itself as a new way that medicine will be offered to patients, providers, telehealth companies, and patients will need to be well aware of the medicolegal risks that accompany its many benefits.

Dr. Kella is an emergency physician, healthcare executive, and physician expert. He has been retained in over 100 cases with expertise in emergency medicine standards of care and medical malpractice, healthcare policy, hospital administration, medical products and devices, nursing home negligence, and digital healthcare. He currently practices in the D.C area.

Copyright Vipul Kella, M.D., MBA. FACEP

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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