Almost two years into the pandemic, the widespread use of telehealth technologies does not appear to be going away any time soon, if at all. The COVID-19 crisis has accelerated the use of telehealth offering technology-enabled health and care management and delivery systems that extend capacity and access.1
The telehealth capabilities spectrum goes well beyond the patient-physician video encounter. Comprehensive telehealth services can include data storage and review (images and labs), “apps,” portals for communication and education with patients, real-time care delivery (virtual visits), and real-time monitoring (BP, glucose, and EKG). Telehealth is expanding our capabilities to provide quality patient-centered care.
Now is the time to evaluate and strengthen your telehealth program/plan to meet your practice’s goals and your patients’ needs. Identify the objectives of your telehealth program, the services that will be offered, and the operational oversight. The following steps provide guidance on how to manage a productive and effective telehealth program.
1. Workflow: Develop and define workflows and new roles. Consider workspace, telemedicine etiquette, and the appropriate patient population for telemedicine services.
2. Operations: Review staff education and training, competencies, privacy issues, state guidelines, informed consent, and quality review.
3. Policies and Procedures: Include scope of practice for providers and staff and standards of care.
4. IT Functionality: Ensure HIPAA-secure platforms, cyber security controls, and integration of visits and monitoring into the EMR.
5. Communications and Care Coordination: Consider patient preference, patient resources, language services, pre-visit planning, post-visit patient education and referrals, documentation, and follow-up/follow-through protocols.
6. Reimbursement: Review state laws and CMS requirements to determine what level of reimbursement, if any, can be expected for a telehealth program.
With new positive advances in virtual care comes new liability risk for practitioners providing medical advice and care to patients that they are not seeing face-to-face. Potential telehealth risks to be aware of include:
Legal/regulatory compliance (state laws, CMS requirements regarding telemedicine, HIPAA compliance).
Inadequate training in the use of technology.
Technology failures: poor image quality, lags.
Inadequate patient selection criteria (specialty-specific guidelines).
Physicians practicing from home: bandwidth interruption/distraction, privacy.
Obtaining informed consent, including video limitations.
Documenting the encounter: especially follow-up care, referrals, prescriptions.
Verifying medical professional liability (MPL) coverage for virtual visits across state lines.
Verifying applicable laws in states where care is delivered: informed consent, prescriptions.
Potential malpractice case allegations related to this expansion of telehealth can include:
1. Failure to diagnose and correctly triage.
2. Incorrect interpretations of images from home or remote, and miscommunication.
3. Failure to communicate presenting symptoms to
a remote examining specialist and resulting failure
to diagnose.
4. Systemic failure of a device/app to monitor.
Recommended Risk Management Mitigation Strategies:
Determine which patients can be appropriately seen by a video encounter and which visits must occur in person.
Consider patient access of broadband, education levels, age, and language barriers.
Educate patients on how to use the program and
its benefits.
Verify the patient’s identity (driver’s license and specific questions regarding visit).
Document informed consent and include the limitations of a video exam, and technology interruptions.
Document the video encounter in the EMR and include test ordering and results, any communication with patient/family/referral/coordination with other providers, referrals and follow-up care including timeframe, and technical issues encountered.
Verify the patient’s understanding, especially
follow-up steps.
Focus on the patient experience.
Re-examine the Best Clinical Scenarios for Use of Telemedicine (ATA-American Telemedicine Association).
Seek out specialty-specific guidelines (APA- American Psychological Association, ACR- American College Radiologists, ACEP- American College of Emergency Physicians).
Telemedicine is evolving rapidly. Telemedicine risk is new and also rapidly evolving. So far, only a very small number of claims have occurred. Telemedicine risk can be managed with planning and careful thought. Know the limits of a virtual encounter. To lessen the likelihood of any additional malpractice risks, physicians should adhere to licensing rules, comply with HIPAA regulations, follow the same standards of care as they would for in-person treatment, and document appropriately.
Deborah Kichler is a Senior Risk Management and Patient Safety Specialist for CAP. Questions or comments related to this article should be directed to
DKichler@CAPphysicians.com.
1The American Telemedicine Association, 2019
Webinar: Telehealth: Utilizing Adverse Event Data to Proactivity Identity and Mitigate Risks (ECRI, July 2021)
Telehealth (ecri.org, March 30, 2020)