The pandemic has catapulted telehealth into the mainstream. When stay-at-home orders took effect last spring, many patients and doctors turned to telehealth out of necessity and discovered the many conveniences it offers. The federal government and states temporarily relaxed many restrictions on telehealth to help ensure Americans received the care they needed during the pandemic, and some of those rules are now being made permanent. As telemedicine continues to expand, medical negligence claims related to telehealth are likely to increase and evolve in complex ways.
Temporary regulations becoming permanent
The Centers for Medicare and Medicaid recently made certain temporary telehealth flexibilities permanent, including adding permanent coverage for some telehealth services that it has temporarily covered since the pandemic began. The Department of Labor recently ruled that employees can permanently use telehealth to establish a serious health condition that would qualify them for taking time off from work under the Family Medical Leave Act. And several states have introduced legislation to give permanent status to temporary telehealth-related regulations. The governor of Arizona, for instance, proposed legislation in January to permanently allow Arizona residents to receive telehealth services from any health care practitioner who is licensed in one of the 50 states or District of Columbia. Several states have passed or are considering legislation to require payment parity for telehealth services in commercial plans. And as changes to federal regulations continue to be contemplated, Colorado, Nevada, Oregon, and Washington have announced they will work together to identify best telehealth practices.
Operating across state lines
Doctors conducting telemedicine visits across state lines must be mindful that they are subject to the liability laws in the state where the patient is located. While almost all states have relaxed their state-to-state licensure restrictions temporarily, doctors who are practicing in states in which they are not licensed must stay on top of updates to the laws to avoid legal and insurance risks. Further, doctors should be aware of differences in state laws regarding potential liability. Some states have caps on the amount of non-economic damages that can be awarded in medical malpractice cases. In California, for instance, the limit is $250,000, which ensures much lower potential liability for the provider versus practicing in a state like New York, which does not cap medical malpractice damages.
Impact of the sudden expansion on negligence claims
As telehealth continues to expand, the amount of telehealth-related negligence and malpractice claims will likely grow accordingly. Telehealth brings increased risks for medical practitioners, including new clinical risks as well as cybersecurity and patient privacy concerns. Remote exams have limitations, and physicians must know when to recognize those risks and advise patients to come into the office for an in-person visit. Otherwise, they may miss diagnoses or fail to refer a patient to a specialist when needed. Prior studies of telemedicine-related lawsuits point to diagnostic errors as the main reason for claims. According to medical liability insurer CRICO, 66 percent of the 106 telemedicine-related claims in its national database from 2014 to 2018 were diagnosis-related. This was followed by surgical treatment claims, at 12 percent, medical treatment claims, at 11 percent, and claims involving medication errors, at 5 percent. Similarly, The Doctors Company, another medical liability insurance company, found that diagnostic errors, at 71 percent, particularly those involving cancer, were the most common allegation in a study of 28 telemedicine-related claims. As telemedicine use expands further, the types of risks may evolve in unpredictable ways. “The pandemic has called for a massive number of physicians and patients to use telemedicine differently than they ever had before,” a report by The Doctors Company read. “This may result in claims of types we have not yet seen; the results of those claims will take years to emerge.”
In addition to keeping up with changes in laws and shoring up their HIPAA compliance and cybersecurity systems, physicians need to educate themselves in remote exam techniques and other best telehealth practices. Medical societies have increased their offerings of continuing medical education courses on industry-specific telemedicine topics, which can help physicians protect not only their patients but themselves.