Medicolegal Sidebar: Telemedicine—New Opportunities and New Risks

Orthopaedic surgeons delivered online musculoskeletal services during the COVID-19 crisis with encouraging results [8]. And as we reach the tail-end of the pandemic, telemedicine is likely to become a permanent part of many, if not all, orthopaedic practices [4]. But the virtual practice of medicine creates new risks that mainly arise from the challenge of diagnosing and treating patients that a provider cannot directly observe or touch [7]. Not surprisingly, an analysis by CRICO, a medical liability insurer, showed that from 2014 to 2018, of 106 telemedicine-related claims, 66% were related to diagnostic errors [5]. Considering the rise in telemedicine use during the pandemic and the lack of rules guiding its practice, the number of legal claims in this area is bound to increase.

Orthopaedic surgeons cannot afford to accept telemedicine as a convenient alternative to in-person visits without first considering the many other variables that could potentially expose them or their medical practice to legal trouble. For example, while some authors have described successful fracture care starting with an online visit [4], this is a risky proposition. Without a hands-on examination, injury severity and the need for further imaging may not be apparent, leading to misdiagnosis and/or complications such as compartment syndrome.

One illustrative case involved a 62-year-old man with obesity who was 3 weeks out from an ankle injury and who was immobilized in a leg cast [5]. During a telemedicine visit with a primary care doctor, he reported new swelling of the leg. The physician advised elevation and follow-up with his orthopaedic surgeon within 24 hours, with a doppler ordered for later that day. Before the patient could get the doppler, he collapsed and died of a pulmonary embolism arising from a deep vein thrombosis. The family filed a lawsuit, alleging that the telehealth providers should have treated him emergently based on the video visit. The lesson from this case is that when, as here, a life- or limb-threatening condition is part of the differential diagnosis, a virtual visit alone is not enough. The patient should have been seen in person.

Documentation and Regulatory Risks

Documentation for telemedicine can create liability risk as well, especially if a provider mindlessly cuts and pastes from templates designed for in-person visits. Language like “regular heart rate and rhythm” or “5/5 muscle strength in lower extremities” may commonly be used in clinic notes [5], but they cannot appear in telemedicine records. If a lawsuit occurs, an attorney would present the provider as careless or dishonest in documenting findings that could not have been performed remotely. Until standard medical language specific for telemedicine is developed, documentation should be limited to only that which the provider can observe during a virtual visit (such as active ROM of a joint), specifically excluding those findings that require a hands-on examination (such as grading muscle strength or any physical findings that call for auscultation or palpation).

Telemedicine providers should also be aware of licensing and credentialing laws that apply when telehealth delivery crosses state lines [3]. The risks of healthcare delivery across state lines were illustrated in the 2007 legal ruling in Hageseth v Superior Court of California [6]. A Colorado-licensed physician prescribed anti-depressants to a student in California, who later committed suicide. The California prosecutors alleged that practicing telemedicine violated the law because the doctor was not licensed to practice medicine in the state. The court agreed, and successfully asserted jurisdiction over the case, applying California state law to find the physician liable. Online prescription drugs were also addressed in an Arizona ruling where a pharmacy was found to have violated state law when it filled online prescriptions, relying only on physician review of internet patient questionnaires, without physical examination [1]. Until new case law changes these legal rulings, providers should be wary of prescribing medications, especially opioids, over the internet and across state lines. Hagaseth is still good law today; if a provider treats patients or prescribes medication to a patient in another state, that provider will most likely be subject to the laws of the state in which the patient resides. In our view, physicians should make sure that their malpractice insurance covers claims arising from telehealth care, including prescription medication, that is delivered to patients living outside the state where the physician is licensed to practice.

Informed Consent

Inadequate and/or poorly documented informed consent can lead to a claim for medical battery, in which the patient claims his or her body was touched or treated without consent [5]. In the context of telemedicine, it is not safe to assume that a patient who has consented to medical treatment also consents to getting that treatment via telemedicine. A proper informed consent specific to telemedicine should be obtained, preferably during a first in-person visit, before virtual care is delivered. Specifically, the patient must understand the limitations and risks that are specific to virtual care and consent to receiving such care. Since in-person visits were curtailed during the COVID-19 pandemic, a consent for telehealth delivery should be obtained proactively going forward for all patients, in case a future emergency precludes initial in-person visits.

A recently proposed three-question patient-engagement tool may help educate patients about telemedicine and obtain their consent for such care [8]. This tool is built on a three-pronged inquiry on behalf of the patient: (1) What are my options? (2) What are the benefits and harms of those options? (3) How likely are each of these benefits and harms to happen to me? While not a waiver of liability, informed consent based on this three-question tool can help patients to weigh the advantages versus risks of online care and make their choice.

Technology Platform

Surgeons should rely on established, tested platforms, much like electronic medical record systems. That alone will limit liability. Emails and texts to patients are risky because their privacy can be easily compromised. All communications should be done through portals specifically developed for telehealth care delivery.

To ensure patient privacy and protect data, a dedicated HIPAA-compliant technology platform with security protocols should be in place. Digital data transmission increases the risk of unwanted interception and loss of private patient information. Secured and trusted telemedicine platforms can ensure patient privacy and confidentiality. These platforms typically support encrypted video, secure messaging, and identity verification processes, all of which can protect private health information. They can also incorporate a patient-facing portal, which allows upload of previsit intake data such as surveys and photos that would otherwise need to be handled by the clinic staff. Properly designed technology platforms can also obtain informed consent during patient intake and reduce malpractice risk. According to the patient care analytics firm Protenus, within healthcare at large, including telehealth, more than 41 million patient records were breached during 2019, an increase of 48.6% over 2018 [2]. Since compromise of telemedicine platforms is nearly inevitable going forward, liability insurance carriers have recommended that providers use HIPAA-compliant platforms, even in states that temporarily relaxed restrictions around non-HIPAA-compliant platforms during COVID-19 [2, 10].

The Future

The global COVID-19 pandemic forced telemedicine onto center stage. While data from medical liability insurers show that claims relating to the practice of telemedicine are being filed [10], case law in this area is currently sparse. That will change, probably sooner than later. As the adoption of telemedicine increases, liability claims will increase correspondingly. Still, with proper patient selection, awareness of legal risks, provider training, and an understanding of risk mitigation strategies, telemedicine can be an efficient and mutually satisfying component of patient care.