Physician liability issues and telemedicine: Part 1 of 3 | Ear, Nose & Throat Journal Skip to content Skip to navigation

Physician liability issues and telemedicine: Part 1 of 3

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October 31, 2015
by Steven T. Kmucha, MD, JD, FACS

At its 2014 annual meeting, the American Medical Association (AMA) promulgated a new policy on the use of telemedicine, and the Federation of State Medical Boards has more recently promoted model legislation for states to consider for facilitating the licensure of providers involved in the practice of telemedicine. Therefore, a review of the process, as well as the liability related to telemedicine, is timely. The advancements and continued development of medical and communications technologies have had a profound impact on the practice of medicine; such technologies offer opportunities for improving the accessibility, delivery, and quality of healthcare, particularly in the area of telemedicine.

Telemedicine is growing so rapidly in many areas and in many specialties such that new terminology has come into vogue to describe these services (e.g., teleradiology, telepathology, telecardiology, teledermatology, telepsychiatry, etc.). New smart phone applications and “widgets,” such as electronic stethoscopes, mobile phone image processing/transmission, vital sign transmission, blood sugar/INR (international normalized ratio) transmission, self-administered hearing tests, etc., are rapidly emerging.

The appropriate application of telemedicine technologies can enhance medical care by facilitating communication between physicians and patients (and with other healthcare providers), including but not limited to, scheduling appointments, providing healthcare information, monitoring chronic medical conditions, obtaining laboratory results, providing medical advice, and prescribing medications. For the purpose of this discussion, telemedicine will be defined as the practice of and provision of medical care using electronic communications, information technology, or other means between a licensee in one physical location and a patient in another physical location (with or without another intervening/referring healthcare provider).

Generally, telemedicine is understood to exclude audio-only telephony, routine e-mail, instant messaging, and fax. Telemedicine typically involves secure videoconferencing or store/forward technology to provide or support healthcare delivery by replicating the interaction of a traditional in-person encounter between a patient and a physician.

Licensing bodies, in fulfilling their duty to protect the public, face complex regulatory challenges and patient safety concerns in adapting regulations and standards historically intended for the in-person and face-to-face provision of medical care to the new delivery models involving telemedicine technologies. These hurdles include but are not limited to: (1) determining if and when a patient-physician relationship is established, (2) assuring privacy of patient data and health information, (3) guaranteeing the proper medical evaluation and medical treatment of the patient, and (4) limiting the prescribing and dispensing of certain medications.

The Federation of State Medical Boards insists that the use of telemedicine must still support a consistent standard of care and scope of practice notwithstanding the delivery tool or business method that enables the patient-physician interaction. For clarity, a physician using telemedicine technology in the provision of medical services to a new or existing patient must take appropriate steps to establish the patient-physician relationship, obtain a medical history, conduct all appropriate evaluations, and implement medical treatments consistent with traditional standards of care for the particular patient presentation.

While there is much support for assisting patients in accessing the benefits and convenience afforded by telemedicine, there is also the overarching need to promote the responsible practice of medicine. As such, some situations and patient presentations are appropriate for the utilization of telemedicine technologies as a component of, or in lieu of, in-person, face-to-face provision of medical care, while others are not appropriate.

Physicians who provide medical care, whether in person or electronically, must maintain the highest degree of professionalism. Like physicians providing in-person care, those who consider participating in telemedicine must place the welfare of the patient first, maintain acceptable and appropriate standards of practice, adhere to recognized ethical codes governing the medical profession, properly supervise nonphysician clinicians who might be involved in the telemedicine process, and protect the confidentiality of patient information.

The optimal health and well-being of patients and the provision of quality medical care depends on a collaborative effort between the patient and his/her physicians. The relationship between the patient and the physician is complex and is based on a mutual understanding of the shared responsibility of both parties for the patient's optimum healthcare.

While it may be difficult in some circumstances to define precisely the beginning (and end) of a patient-physician relationship, especially when the two parties are in different geographic locations as in the practice of telemedicine, this relationship often begins when an individual with a health-related matter seeks assistance from a physician who may (or ultimately may not) provide that assistance. However, the relationship is firmly established when the physician formally agrees to undertake diagnosis and/or treatment of the patient, and the patient agrees to be treated, whether or not there has been (or ever will be) a face-to-face encounter between the physician (or another appropriately supervised healthcare practitioner) and the patient.

The patient-physician relationship is fundamental to the provision of medical care. It is the expectation of each state medical board and the Federation of State Medical Boards that physicians recognize the obligations, responsibilities, and patient rights associated with the establishment and maintenance of an active patient-physician relationship.

A physician is discouraged from rendering medical advice and/or care using telemedicine without (1) fully verifying and authenticating the location of and, to the extent possible, identifying the requesting patient; (2) disclosing and validating the provider's identity and applicable credential(s); and (3) obtaining appropriate informed consent(s) from the requesting patient after providing relevant disclosures regarding the delivery models and treatment method or limitation (including any special informed consent regarding the use of telemedicine). An appropriate patient-physician relationship has not been established when the identity of the physician remains unknown to the patient.



Suggested reading

  1. Federation of State Medical Boards. Model policy for the appropriate use of telemedicine technologies in the practice of medicine: Report of the Federation of State Medical Boards' Appropriate Regulation of Telemedicine (SMART) Workgroup.April 2014. www.fsmb.org/Media/Default/PDF/FSMB/Advocacy/FSMB_Telemedicine_Policy.pdf. Accessed September 22, 2015.
  2. Interstate Medical Licensure Compact: Federation of State Medical Boards. http://licenseportability.org. Accessed September 22, 2015.
President, California Otolaryngology Society, AAO-HNS BOG Executive Committee
Ear Nose Throat J. 2015 October-November;94(10-11):428-429