Visit: https://vsee.com/blog/telemedicine-101-malpractice-considerations/ Participants in this webinar will learn the risk management basics of medical practice using telehealth. From the simple telephone, to sophisticated, often EHR imbedded applications this mode of practice is becoming increasingly more ubiquitous especially during the current COVID-19 pandemic. Key topics to be covered include understanding state-based licensing regulations, informed consent, technology pitfalls and documentation guidelines. The speaker will also cover the recent changes in both federal and state regulations which allow physicians to begin practicing using telehealth with fewer barriers. Know the trends and risks before dialing in!

1. Telehealth Risks, Safety, and Malpractice
– know before dialing in!
April 13, 2020

2. Visits to Physicians
Ann Int Med. February, 2020

3. State of Digital Health Tools
3
AMA Digital Health Research. February, 2020

4. Telehealth and Malpractice
4
AMA Digital Health Research. February, 2020

5. Telemedicine is “too hard”
Patients prioritize relationships over transactional care
The physical examination cannot be redefined
Virtual visits are not effective
There is no business model
Telehealth Barriers
5
NEJM Catalyst. April 1, 2020

6. State Licensing
• Potential “criminal offense”
• Malpractice coverage (venues)
• The Interstate Medical Licensure Compact (https://imlcc.org/)
Physician-Patient Relationship
• First visit requirements
• Nature of visit (i.e. emergency, prescriptions)
Key Risks to Understand in Telehealth
6

7. Documentation
Technology - HIPAA
Insurance coverage – cyber/privacy liability, business
interruption
Business associate agreements
Patient’s environment
Billing, especially Medicare and Medicaid
Key Risks to Understand in Telehealth
7

8. State specific requirements
Names and credentials of staff participating
Right to stop or refuse treatment by telemedicine
Technology that will be used
Privacy and security risks
Technology specific risks (i.e. interruption and poor quality)
Permission to bill
Alternative care in case of an emergency or technology malfunction
Ideally both a signed consent form and note in the patient’s chart
8
Informed Consent

9. “Web-side” manner
• Camera at eye level
• Clothes that work best on a video screen
• Badges are visible to the patient
• Removing visual distractions from behind the clinician
Pre-visit - workflow
Physical examination
• Ottawa Rules
• Roth Score
Options – native, stand alone, hybrid
9
Telehealth Tips

10. As a component of claims, telemedicine has increased in the
last 15 years but still very small.
Diagnostic errors most common case type:
• Cancer – 25%
• Stroke – 20%
• Infection – 20%
• Ortho – 10%
Paid versus no payment of claims has not changed—
remains higher than average.
Telehealth and Malpractice
10

11. Federal rules (cms.gov)
• Medicare
• Office of Civil Rights – HIPAA
State rules
• Medicaid
• Departments of Health
FCC grants (www.fcc.gov/covid19telehealth)
Professional Liability Insurer
Telehealth & Coronavirus
11

12. Laws in place but penalties suspended – only Telehealth
Privacy
• Governor Newsom’s Executive Order – aligns with OCR
No formal verbal/written consent required
Controlled substances – waived in-person first visit
• Rx legitimate, A-V real-time
Telehealth & Coronavirus - California
12

13. Telehealth & Coronavirus
13
NEJM Catalyst. April 1, 2020

14. American Telemedicine Association (americantelemed.org)
American Medical Association (ama-assn.org)
• Ethical practice in Telehealth and Telemedicine, 2017
American Society of Healthcare Risk Management
(ashrm.org)
• TELEMEDICINE Risk Management Considerations, 2018
Center for Connected Health Policy (cchpca.org)
• https://www.cchpca.org/resources/covid-19-telehealth-coverage-
policies
Telehealth Resources
14

15. Questions?
David L Feldman, MD MBA CPE FAAPL FACS
Senior Vice-President and Chief Medical Officer
Healthcare Risk Advisors
Chief Medical Officer
The Doctors Company
T: 212.891.0773
dfeldman@tdchra.com