By Dr. Linda C. Ashar, J.D., Faculty Member, Wallace E. Boston School of Business
Telemedicine, telemed or telehealth, is the remote healthcare services provision through the use of technology. Telemedicine was introduced in the mid-20th century, especially in response to NASA’s need to medically support humans in space. A historic pilot telemedicine project involving NASA, called STARPHAC, was conducted with the Papago (now the Tohono O’odham) Indian nation in the 1970s. The practice grew from there, largely used for special environments, such as remote research facilities, military venues and prisons.
Telemedicine Becomes Mainstream
From its earlier practice applications, telemedicine steadily became more easily and economically achievable with advances in technology. The internet and ever-increasing computer capabilities for both medical practice and patients alike have made the potential of telemedicine nearly limitless.
The COVID-19 pandemic blasted remote medical consultations into the fast lane. For example, when the first COVID-19 cases hit Ohio in early March 2020, the Cleveland Clinic implemented a plan to expand its telemedicine services for primary care within 72 hours. In March, the complement of telemedical services at the Cleveland Clinic grew from 1% to 50%, and then to 80% in April.
Practice Definition of Telemedicine
Like everything else, such innovation brings its own batch of concerns. One of these concerns is the legal and ethical standard of defining telemedicine practice. For example, although technically a consultation, most authorities do not consider a “cold call” brief telephone exchange by itself valid telemedical practice.
“Telemedicine” means the practice of health care delivery, diagnosis, consultation, evaluation and treatment, transfer of medical data or exchange of medical education information by means of a two-way, real-time interactive communication, not to exclude store and forward technologies, between a patient and a physician with access to and reviewing the patient’s relevant clinical information prior to the telemedicine visit.
“Telemedicine” and “store and forward technologies” shall not include consultations provided by telephone audio-only communication, electronic mail, text message, instant messaging conversation, website questionnaire, nonsecure video conference or facsimile machine.
“Store and forward technologies” are methods of collecting messages, images, or data to be reviewed and interpreted at some point later in time. Oklahoma’s statutory limitation refers to nonsecure forms of such messaging and data transfer. A secure messaging portal is required between provider and patient and for data transfer. Oklahoma’s statute also prohibits the writing of prescriptions for opiates via telemedicine practice.
Key points to note in the statute’s definition are:
- Physician-patient relationship
- Establishment and maintenance of patient record
- Secure communication and privacy measures in the communication
- Face-to-face remote dialogue with the patient
As with any other venue of consultation and treatment, a standard of care must be met in telemedicine.
What Is Meant by Standard of Care?
The standard of care for medical treatment of patients is framed by law and the profession’s ethical provisions as defined by each state’s statutes and governing medical boards. The American Medical Association (AMA) provides further guidance and monitoring of the application of standards at the national level.
Standard of care frequently arises in the context of alleged malpractice. Whether a physician has breached the standard of care can also arise in complaints to the state medical board, which controls licensure.
A claim for medical malpractice must show that the defendant physician or other medical provider breached a standard of care observed for the practice at issue (e.g., a cancer diagnosis) by the medical community, and that the alleged substandard care proximately caused the injury. Thus, the standard of care is the threshold question.
The basic standard of care rests on the concept of reasonableness as viewed in the context of current medical practice in the community. The fact that a decision proved to be wrong is not proof of malpractice. The fact there was injury or harm is also not proof. To determine whether the care and treatment given meets the state’s standard in an actual case, the courts consider the assistance of expert testimony by defendants’ peers in their medical realm of expertise.
In short, the standard of care ultimately is defined by a consensus of the practitioners as to the accepted medical practice in the relevant medical community for the treatment provided, within the constraints imposed by law and, today, by insurance providers.
Standard of Care for Telemedicine
Rest assured that expectations and standard of care are not lowered for telemedicine practice. Telemedicine is a communication methodology enhanced by the ability to remotely speak, view, and link doctors, nurses, technicians, and equipment with patients. As with in-person evaluations, the central dynamic is the physician-patient relationship and with the patient’s informed consent for what the process can and cannot deliver.
The standard of care required and expected is no different than for any other medical practice context. Oklahoma’s Attorney General explains the application of the standard of care in telemedicine this way in the context of Oklahoma’s Telemedicine Law:
Practitioners cannot fall below standard of care, for example, or treat telemedicine patients differently from in-person patients in regard to confidentiality, access to records, follow-up, ethics, etc.
The State of Ohio Medical Board’s Position Statement on Telemedicine makes clear that telemedicine is a valuable asset in the practice of medicine but at no expense of standards:
[T]elemedicine is a potentially useful tool that, if employed appropriately, can provide important benefits to patients, including: increased access to health care, expanded utilization of specialty expertise, rapid availability of patient records, and potential reductions in the cost of patient care.
The Medical Board cautions, however, that licensees practicing via telemedicine will be held to the same standards of care as licensees employing more traditional in-person medical care. A failure to conform to appropriate standards of care, whether that care is rendered in person or via telemedicine, may subject the licensee to potential discipline by the Medical Board.
Considering the clear assurance of the state laws, the AMA’s Telehealth Implementation Playbook, and basic practice standards, the following essentials should be expected in telemedicine practice:
- Identify patient needs best served by the service
- Identify practitioners and support personnel who can deliver best practice in remote patient communication and dedicate trained personnel for communications with patients
- Patient understanding is vital. Educate and inform patients; obtain valid informed consent; and identifying patient comfort level with the system
- Ensure technology stays current and provides security and privacy in communications and records transmittal (HIPAA compliance)
- Dedicate trained personnel for maintenance of equipment and technology
- Ensure no licensure limitations if serving patients sited outside practice state. (The telemedicine service is considered provided at patient’s location.)
- Ensure providers possess professional standard of competency for field of service provided (usually primary care)
- Cover legal bases for requirements of federal and state law and state medical board requirements, including keeping current on updates
Simply stated, the system needs to be user friendly for patients and providers; it also needs to: be cyber secure; enhance, not interfere with, standard of care; and closely updated for technical accuracy and validity.
Telemedicine adds convenience and efficiency to healthcare for both patients and medical providers. Effective, creative use of technology, mandated dramatically by the 2020 pandemic to safely deliver remote health services to a sequestered populace, has offered stability, comfort, relief, and support to burdened healthcare providers and fearful patients.
Importantly, telemedicine does not require or permit sacrificing quality or lowering the standard of care. Just as expected in other modes of practice, physicians and other telehealth providers have legal and ethical obligations to fully inform patients, to be transparent and to avoid conflicts of interest. They must also apply reasonable standard of care in diagnosis, treatment, and referral, and maintain confidentiality.
Medical providers understand the requirements of telemedicine practice. Insurance providers have accepted its advantages. Lawmakers are recognizing the benefits and aligning legal parameters. As technology continues to swiftly advance, so will telemedicine’s capabilities.
About the Author: Dr. Linda C. Ashar is a full-time Associate Professor in the Wallace E. Boston School of Business, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes business, employment law and litigation on behalf of employers and employees.