Telehealth Revolution Could Increase Malpractice Risk-The HSB Blog 5/10/21




Our Take:


The COVID-19 pandemic has increased the use of telehealth and medical technology as federal restrictions were loosened and waivers were put into place. Although telehealth is used more frequently to treat acute conditions, physicians need to be wary of the potential for malpractice issues in the future. There are outstanding concerns around whether providers are aware of particular guidelines to ensure the standard of care has been met. Post pandemic, waivers will be lifted, in-person medicine will likely return closer to pre-pandemic levels and limits could be placed on practice guidelines posing a risk to providers practices.


Key takeaways:

● The Federal Government’s decision to expand services covered by telehealth included removing licensing restrictions and extending coverage to Medicare patients.


● The retightening of telehealth regulations could result in providers being held liable for breaching the standard of care if patients are harmed during telehealth visits if providers don’t remain on top of regulatory changes.

● Telehealth significantly reduced the barriers to telehealth utilization but placed significant concerns on how providers can practice safely and within their jurisdiction in the future.


● In response to concerns providers face, there are at least four preventive steps providers can take to avoid malpractice claims.


The Problem:


As telehealth use increases with the greater acceptance by patients and providers for care following the pandemic, and the increasing potential to use it for higher acuity cases there are concerns about the potential for higher incidence of telehealth malpractice claims. In particular, two areas of concern center around providers’ ability to adhere to data privacy and security regulations and the potential for misdiagnosed conditions. While state and Federal regulators waived a number of regulations around data privacy and security during COVID, once the public health emergency ends, there are questions about whether providers will be able to ensure full adherence to federal privacy and security rules. Given the increased number of platforms and methodologies by which patients participated in telehealth during the pandemic (including non-HIPAA compliant textng and video-chat) more opportunities will present themselves for intentional and non-intentional violations of the Health Insurance Portability and Accountability Act (HIPAA) and the California Consumer Privacy Act (CCPA). With regard to misdiagnosis, while the pandemic moved patients towards greater use of telehealth, some remain skeptical that telehealth can effectively diagnose and treat patients particularly as it moves to treat higher-acuity conditions. For example, misdiagnosis may occur due to ineffective communication, an inability to establish a robust physician-patient relationship, or providers being unable to get a complete and detailed patient history. In addition, given the lack of an in-person physical examination there is also the potential that providers may miss non-verbal clues more easily picked up in a physical examination.


The Backdrop:


Many years prior to the pandemic, in 2005, The Public Readiness and Emergency Preparedness Act (PREP Act) authorized the Secretary of the Department of Health and Human Services (HHS) to make certain emergency declarations providing immunity from liability to aid in addressing a public health emergency (PHE). In January 2020, President Trump declared a PHE allowing the HHS to institute certain emergency measures. Following the declaration Federal and state regulators eliminated or suspended barriers to implementing digital health, resulting in dramatically increased usage. According to a study by the American Medical Association (AMA), the Federal Government’s decision to ease provider privacy requirements, expand services coverable by telehealth, remove licensing fees restrictions, and extend telehealth coverage to all Medicare via the increase in covered services significantly reduced the barriers to telehealth utilization. Among some of the policy changes implemented were: 1) allowing physicians to provide telehealth services to out-of-state Medicare beneficiaries, 2) relaxing strict enforcement of fines for non-compliance with HIPAA rules, 3) paying providers the same rate for telehealth services as in-person visits for Medicare patients, and 4) $200 million in increased funding from the Federal Communications Commission (FCC) under the CARES Act to support eligible health care providers in obtaining the necessary devices to facilitate the provision of telehealth services. Despite this loosening of regulations during the pandemic, a recent article in Becker’s Hospital Review pointed out that there are a number of potential medical malpractice concerns providers should be aware of when delivering telehealth services. The article, which cited the Wolfe Pincavage law, noted that telehealth malpractice concerns center around five areas including: 1) data breaches of patient’s protected health information, 2) misdiagnosis or possible improper prescription of patient’s medications 3) software limitations and/or internet glitches that may lead to diagnostic errors, 4) accurate documentation by providers which ensures patient confidentiality and standards of care are met, and 5) providers being significantly well versed in their respective states telemedicine laws to ensure they are meeting all of the specific requirements of state law. Telehealth delivery exacerbates the concerns providers may face, which can hold them liable for breaching the standard of care if patients are harmed as a result of incomplete or inadequate care during telehealth visits.


Implications:


The COVID-19 pandemic completely changed the outlook on telehealth services and how care is delivered. While traditional approaches to seeking medical advice were effective, telehealth provided added convenience and flexibility, particularly for people who were afraid of exposing themselves to the Coronavirus during the pandemic and did not want to visit medical facilities, like hospitals. In addition, telemedicine can broaden healthcare access by allowing patients in remote areas to access care where care options may be limited. Nevertheless, telemedicine poses its own unique set of risks and challenges compared to the in-person practice of medicine. For example, due to state and Federal laws there are unique requirements regarding jurisdiction, procedure, and duty of care. In addition, given that numerous legislative and regulatory changes are expected as the waivers during the PHE end, providers and clinicians must ensure they remain diligent in following rule changes to ensure their practice does not exceed the scope of their medical licenses as telemedicine often crosses state lines. Also, while telehealth usage has declined sharply from the peaks seen during COVID, overall utilization levels are expected to remain higher than pre-pandemic levels as is the level of acuity of conditions treated via telemedicine. As a result, the potential for malpractice issues is likely to be greater in the future. As noted in a recent article entitled “Is the Doctor In? Medical Malpractice Issues in the Age of Telemedicine” providers can take four steps to help avoid malpractice: 1) be vigilant and ensure effective telehealth visits, 2) be more cautious with consent and proper documentation prior to the telehealth visit, 3) ensure the technology used for telehealth visit comply with HIPAA, HITECH and state regulations and providers abide by all in-person medical practice standards, medical licensing boards, and 4) seek advice from their legal departments to better understand potential liabilities as there may be certain medical malpractice risks towards telehealth as compared to in-person care. As telemedicine becomes a more consistent part of the mutli-channel care delivery model, providers will want to ensure successful telehealth encounters as demand increases. Similarly, they will want to ensure strict adherence to state regulatory mandates, including regular checks with counsel and routine audits to reduce the risk of licensure violations and malpractice liability. The successful adoption and usage of telehealth and adherence to the prevailing regulatory standards will ensure their practices remain on the cutting edge of healthcare delivery in order to increase the role of preventive care, lower hospitalization rates and decrease healthcare costs.


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