In contrast to traditional health care, telemedicine is medical practice involving an on-site attending physician and a “remote teledoctor” who provides a service such as interpretation of radiographic studies, consultation, or telesurgery for the benefit of the patient.

AAOS Now

Published 10/1/2007
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David E. Attarian, MD

Medical liability in cyberspace

The use of computers and the Internet in health care has exploded over the past decade, producing efficiencies and improvements in communication, patient education, medical records, billing, resource allocation, and access to subspecialty care. Concomitantly, the physician employing these tools in professional practice has been exposed to novel medical-legal risks and liability that did not exist a generation ago.

This article reviews the basic concepts and strategies for the orthopaedic surgeon to reduce his/her potential exposure to litigation, financial risk, and/or disciplinary action associated with telemedicine and cybermedicine.

For specific practical guidelines or legal advice, contact a healthcare attorney or your state medical board(s).

What is telemedicine?
Telemedicine and cybermedicine have been defined by the American Medical Association and most state medical boards.1,2 In contrast to traditional health care, telemedicine is medical practice involving an on-site attending physician and a “remote teledoctor” who provides a service such as interpretation of radiographic studies, consultation, or telesurgery for the benefit of the patient.

Telemedicine may have several benefits, including elevating the standard of care, improving access to subspecialty care in remote or underserved areas, and potentially reducing costs.

Cybermedicine, on the other hand, is quite different from telemedicine. There is no face-to-face contact between the physician and the patient; diagnosis and treatment is rendered by an unknown physician to an unknown patient, or care is given to an established patient but only through electronic communication.

The following key issues must be considered when engaging in telemedicine or cybermedicine:

  • licensure
  • standard of care
  • physician-patient relationship
  • medical liability coverage
  • informed consent
  • confidentiality of electronic communication

Licensure and liability coverage
State medical boards generally mandate that a physician who provides a diagnosis and/or treatment to any patient within the state’s geographic borders must have a full and unrestricted medical license in that state.3-5 (Intraspecialty consultation across state lines is often an exception.) Thus, any physician who provides telemedicine or cybermedicine services to patients in any particular state must query their state’s medical board about licensure requirements.

In contrast to traditional health care, telemedicine is medical practice involving an on-site attending physician and a “remote teledoctor” who provides a service such as interpretation of radiographic studies, consultation, or telesurgery for the benefit of the patient.

Additionally, the physician must notify his or her medical liability insurance carrier of the specific locations where patients receive such care. Failure to comply may result in disciplinary action for practicing medicine without a license in a given state, as well as denial of medical liability coverage in the event of a lawsuit.

Most state medical boards consider cybermedicine unethical unless the physician rendering treatment has already established a traditional face-to-face relationship with the patient. (An exception is general, evidence-based educational information that is posted on a Web site for diagnosis and treatment of various conditions and is not targeted to any given individual.) Although cybermedicine is becoming more common, especially in providing prescription services to patients, nearly every state medical board is clarifying and limiting the circumstances for such medical practice. In addition, state medical boards are aggressively pursuing all legal avenues and penalties to shut down cybermedicine Web sites and to penalize cyber-physicians.

Standard of care and physician-patient relationship
Telemedicine and cybermedicine produce confusing and hotly debated questions about standard of care and the physician-patient relationship. Traditionally, both standard of care and the physician-patient relationship have been defined based on a face-to-face diagnosis and treatment. Once a physician provides any substantial service in rendering a diagnosis and/or treatment for a specific patient (and particularly if the physician receives reimbursement for these services), most courts would interpret the physician as having a formal relationship with the patient, thus mandating that the standard of care (as defined by the respective state medical board and/or professional society) be met. This would expose the “off-site” physician to medical liability.

In the case of telemedicine, a physician who has met appropriate licensure and insurance requirements would be protected if the standard of care was met. In contrast, except for treating traditionally established patients for known, existing diagnoses, cybermedicine practices would be deemed unethical, illegal, and not covered by liability insurance. It behooves the surgeon to be very cautious and seek appropriate legal counsel before employing these methods in his or her professional activities.

Privacy and informed consent
Privacy and confidentiality requirements may be more difficult to manage in cyberspace. The unintentional release of information to unknown recipients may become a major legal problem. The security of an individual’s healthcare information will be almost impossible to manage once it becomes available or has been sent over the Internet. Even when e-mails are deleted, there is almost always a permanent record on a server; and it may be problematic in determining if and when an electronic communication was received and/or opened.

To reduce the liability associated with telemedicine, electronic records, or Internet communication, the patient should be formally made aware of the known—and unknown—risks that are beyond the physician’s control. The patient should also provide documented informed consent accepting the risks. The physician sending electronic information to a patient should always request an acknowledgement of receipt. Diligence in these matters will prove that the physician made every possible effort to protect the patient’s personal health data.

The landscape of medical liability in cyberspace is evolving rapidly. Surgeons who are involved with telemedicine, cybermedicine, and/or electronic patient communication should carefully monitor and regularly review their legal and ethical mandates as defined by their respective state medical board(s), the federal government, and the AAOS. Failure to keep up in this regard, or lack of knowledge, will most likely not be an acceptable excuse to a state medical board or provide a successful legal defense within a medical malpractice lawsuit.

David E. Attarian, MD, is a member of the AAOS Medical Liability Committee. This article is not intended as legal advice; consult an attorney for your specific circumstances. Additional references may be found online at www.aaos.org/now

References:

  1. Harrington K: Legal implications of the practice of medicine over the internet- telemedicine and cybermedicine. Cyberlaw, Nov. 10, 1999.
  2. Jones JW: Liability for electronic medical communications. Physician’s News Digest, May 2000. http://physiciansnews.com. Accessed Sept. 27, 2007.
  3. Herrick D: Demand growing for corporate practice of medicine. July 7, 2006. Available at 2007 www.insure.com. Accessed Sept. 27, 2007.
  4. Chamness JN: Liability of physicians for communicating over the internet. Available at www.corneliuscollins.com. Accessed Sept. 27, 2007.
  5. Troxel DB: Licensure requirements for the interstate practice of medicine. The Doctor’s Advocate, Fourth Quarter, 2005. Available at http://www.thedoctors.com/publications.asp. Accessed Sept. 27, 2007