The COVID-19 crisis has created considerable confusion among doctors who are caring for patients virtually as to where they stand on liability for the quality of that care. The CARES Act limits liability for volunteers providing COVID-19 treatment, and some states have extended this to non-volunteer practitioners. Whether such laws apply to non-acute care outside a hospital, though, is uncertain and it is therefore prudent for physicians doing office telemedicine to assume that even if they do provide COVID-19 triage or follow-up that they will not be immunized.
This brings the matter to the general rule that standards of liability in telemedicine are the same as those that apply to in-person care. A telemedicine practitioner must use their clinical judgment to know when that modality is adequate and when it is exceeded.
This goes back to the legal analysis for evaluating all claimed medical negligence: was the action or inaction by the doctor reasonable under the circumstances? To the extent that telemedicine is used for routine check-ups and medication management, it is going to be low risk for liability, and even triage for emergency care does not carry more risk than evaluation through an audio phone conversation, while on-call would and is actually safer because of its video element. However, the scope of use of telemedicine is also where avoidance of malpractice intersects with following medical ethics.
In some cases, the Standard of Care for the applicability of telemedicine is under the control of the payor. In most situations, it is the practitioner who will have to make the decision. In this regard, some threshold points should be considered:
- How are the visual and audio quality of the system that you are using?
- If you will be receiving outside data, is your system optimized for that in terms of data capacity and speed?
- What clinical data can be collected?
You will be carefully documenting the personal and technical information exchanged with the patient during a telehealth visit, and it must be as sufficient to support a diagnosis or treatment as it would be in an in-person visit. Bear in mind that disclaimers about telemedicine’s limitations or mentioning such during an informed consenting discussion before starting a telehealth visit do not act as malpractice liability shields. Remember that a relaxing of regulations during the pandemic is not a relaxing of standards of medical care.
If you nevertheless become involved in a malpractice case as a result of telemedicine, it can be based on any cause of action that can be brought based on standard in-person care. The physician performing the telemedicine is liable for their own negligence and an employer will have vicarious liability under the respondeat superior doctrine, as well as potential direct liability for negligent failure to supervise if their employee practitioner is alleged to have been negligent. Make sure that you have clear policies in place and that everyone who may be encountering a patient remotely is trained in proper procedures.
This article was written by Dr. Medlaw, a physician and medical malpractice attorney.
