Can you insure Telemedicine?

January 27, 2012

Statements on Telemedicine:

We have many physicians, formally, or informally engaging in the practice of telemedicine to some degree.  Pediatricians may ask a worried parent to send a cell phone picture of a puncture wound to a child’s hand due to a neighborhood dog bite; a young student away at college worried about a skin rash may send a clear picture to a local dermatologist through a secure, organized and medical protocol driven web portal, an in-home care agency may use physician assistants and nurses to examine patients communicating to a physician through store and forward technology,  acute care and Intensive Care Units use telemedicine to transmit vital statistics to Intensivists, Adult care and pulmonology specialists to treat the old and very ill.  The Department of Health in New York put out an article recently  on this important topic.

And, I know that our agency can help to insure this risk;  we just want to carefully define your method of establishing and continuing the patient relationship. The Medical malpractice insurance company is completely dependent (almost) on the strength of that patient physician relationship when defending you during a claim.

Statements on Telemedicine Board for Professional Medical Conduct

William P. Dillon, M.D., Chair of the Board for Professional Medical Conduct (Board), in October 2000 charged a Special Committee on Telemedicine to draft an ethical statement relevant to the practice of telemedicine.   Medical Malpractice Insurance Companies throughout the nation are wrestling with the concept, allowing coverage for some follow up care provided through telemedicine after the physician patient relationship is established in person. The charge to the Special Committee on Telemedicine was to study the trend and determine how this technology could enhance patient care without too much exposure to physicians.  In other words, how to do more good than harm.

Advances in medicine and technology are rapidly transforming today's medical practice. While these advances offer opportunities to improve the delivery of health care, they also present challenges to practitioners.  One concern is the integrity and confidentiality of the physician-patient relationship.  The committee had to also determine whether the tenets of professional conduct and the physician-patient relationship are being upheld when using electronic communication in their practice of medicine. Issues which these ethical statements include record keeping, providing for physical examinations and confidentiality.

In considering their charge, committee members concluded that Telemedicine is a very promising force that will increasingly be incorporated into medical practices. The changes that this burgeoning technology will bring in the near future are unprecedented, and laws and regulations will need to accommodate these changes while allowing for public safety. Still, it is important to look at current laws, statutes and medical standards as a  guide to physicians, physician assistants, the Office of Professional Medical Conduct and the Board in determining if how medical practices uphold the physician-patient contract and public trust.

Telemedicine’s biggest promise is in improving access to Dermatologists, specialists not available in every venue.   The practice of telemedicine can be characterized as follows:

  • The geographic separation between two or more participants and/or entities engaged in health care,
  • The use of telecommunication and related technology to gather, store and disseminate health-related information, and
  • The use of electronic interactive technologies to assess, diagnose and/or treat medical conditions.

All the current standards of care regarding the practice of medicine apply. The fact that an electronic medium is utilized for contact between parties or as a substitute for face-to-face consultation does not change the standards of care. The American College of Obstetricians and Gynecologists (ACOG) Statement on Telecommunication in Medicine presents it clearly: "The standards of care for medical practice apply with equal force and vitality to telemedicine if a physician-patient relationship is deemed to exist."

It is the location of the patient that defines where the care has been delivered and the jurisdiction of applicable regulations.  The establishment of standards for licensure is not an impingement upon a physician's or physician assistant's professional property rights, does not unfairly restrict mobility, nor is it unreasonably costly. Telemedicine makes it easy to practice medicine across state lines. Therefore telemedicine is a practice and licensing issue that every state must consider.

A critical issue in telemedicine is determining the definition of a physician-patient relationship.   Health information sites accessed for general information only, without personal interaction, through electronic media are no different from accessing a reference text in a library, and do not constitute a professional relationship. The fact that most types of telemedicine practice are not reimbursed is irrelevant. The committee concluded that the following statement of ACOG is a clear and practical guiding principal:

"If a patient receives professional advice or treatment, even gratuitously, there is prima facie evidence that a physician-patient relationship exists."

In New York, it is permissible to use telemedicine in your physician consults:  New York State Education Law, Article 131, Section 6526(3) does permit a physician not licensed in New York State to provide occasional consultation to a physician licensed and registered in New York State to assist in the care of a patient (see section of law, Attachment 3). The work of this committee is not intended to restrict or redefine permissible consultations now available to and utilized by State physicians.

Physicians and physician assistants are obliged to be identifiable to their patients and failure to provide verification of identity may be misconduct. A patient must have the ability to identify the physician or physician assistant at the point of access. Therefore, it follows that in a telemedicine professional relationship there must also be some form of identification/certification that the physician or physician assistant on the professional end is the licensed, currently registered physician or physician assistant he or she purports to be.

Addressing the issue of follow up care:  Having engaged in a professional relationship via telemedicine, the physician or physician assistant must meet the same expectation of quality as in the traditional medical care process. Other expectations necessarily follow. The first are ethical issues and they include: The physician or physician assistant, having established a relationship, has a duty to be available for care when it is needed or to see that there is a reliable provision for care and advice. The fact that the advice or treatment occurred via electronic media does not change the requirement for follow-up care.

The same standards of keeping detailed, confidential medical records:

In telemedicine, as in face-to-face encounters, a medical record must be created and maintained according to prevailing medical record standards. The medical record is the means by which an episode of care is evaluated against the community standard.   The committee examining appropriate use of telemedicine expounded on the importance of adhering to important medical record documentation.  Failing to maintain medical records in traditional practice settings is unacceptable and inappropriate care as it is in electronic care.  The failure to meet the medical record standard is a frequently sustained and punishable charge in medical misconduct cases. The medical record serves to document the analysis and plan of an episode of care for future reference. It must reflect an appropriate evaluation of the patient's presenting symptoms. Relevant components of the electronic professional interaction must be documented as with any other encounter. Personal communications with patients, not part of that medical record, should be archived separately from the medical record. The medical record is the means of transferring information to another practitioner or appropriate individuals and entities. The medical record is also a legal document and is evidentiary material in legal matters. The standards of confidentiality regarding medical records resulting from an electronic encounter are similarly required.

Telemedicine is another technological advance that physicians, physician assistants and patients will embrace in our never ending pursuit of restoring and maintaining optimal health. The field is changing rapidly, but we found that the existing tenets of professional conduct can be comfortably applied to the practice of telemedicine. 

By this statement, and analysis, we would conclude that it is not, illegal to practice direct to patient telemedicine, it is however important to be clear about how the physician patient consultation/relationship begins and the plan to provide the important after care follow up plan.