WHAT IS GOING TO BE NEW TO HEATHCARE SECTOR?
The COVID-19 pandemic has claimed close to 300,000 lives worldwide, infecting more than 5M people at an exponential rate. The high number of patients in critical condition has saturated intensive care units in the major outbreak areas, and doctors from all specialties and, in some cases, even students and retired professionals have been enlisted to assist.
The global dimension of the current health crisis has provided fertile ground for the rapid development of digital technologies in health sector . When, early on in the pandemic, chest CT scans were found to reveal the extent of lung damage, efforts were established around the world to facilitate data sharing, model training and scan assessment. For example, the Tianhe-1 supercomputer in China was made accessible to anyone in the world in order to provide quick COVID-19 diagnoses based on chest scans. Similarly, in Europe, a collaboration of 30 international partners including the most affected areas in Italy and Spain created Imaging COVID-19 AI, which aims to provide an automated diagnosis and quantitative analysis of COVID-19 based on imaging.
The same technology that helps people communicate all over the world and do their jobs more efficiently has made its way to health care. Telemedicine is the practice of assessing patients remotely using videoconference, digital photography, instant messaging or other technology. This saves time and money, and enables patients and physicians to meet no matter where they are located. While an in-person visit may be required at first, follow-ups can be conducted via videoconferencing. Likewise, patients with chronic conditions are able to get necessary care via telemedicine rather than disrupting their schedules for frequent in-person visits.
Risk of using telemedicine
Location. If a telemedicine claim against a physician is filed, geography could play a part in determining who is liable. Technology enables people to communicate from anywhere, but standards have not been set for physicians who give medical advice and virtual care across state lines. Since care is provided in a patient’s state, that state’s laws may prevail. This has not yet been tested in the legal system, however.
Malpractice complexity. Medical malpractice claims are already highly complex. They sometimes involve a patient’s account of a situation versus a physician’s, and communication between the two. Telemedicine further complicates this as issues related to technology malfunctions could lead to a malpractice claim.
Standard of care. What is considered “good” care by a physician may be inadequate to a patient. There are various rules and regulations regarding the standard of care, and they vary by state. Unfortunately, most states have not yet determined a standard for telemedicine, with the exceptions of Hawaii, Colorado and Texas. But even these standards are flawed—they are somewhat inflexible, can be construed as vague, and become obsolete quickly because of changes in technology.
Data breaches. Medical information is protected under a number of laws, including HIPPA, HITECH and COPPA. As with any internet-enabled device or service, there is risk of a data breach, which may put sensitive patient information at risk of exposure.
Incorrect diagnosis/prescription. Undetermined requirements for telemedicine can lead to an incorrect diagnosis or incorrect prescriptions, because a telemedicine exam is not a complete physical exam as would normally take place in person. Similarly, if a patient is sending a picture of a physical issue such as a rash, a distorted image could lead to an incorrect diagnosis. In such cases, the physician is subject to professional liability claims.
Fraud and abuse. Clear guidelines are set for medical fraud and abuse for in-person doctor visits. In the world of telemedicine, however, what constitutes virtual abuse, and how can patients confirm that the physician is as credentialed as he or she claims? This is yet another area that needs to be standardized.
Standards and guidance around telemedicine need to be developed before physicians can safely give medical advice to patients. In addition to these liability issues, it is also important to understand what a professional liability insurance policy does and does not cover. Many current professional liability policies exclude telemedicine from coverage, so additional coverages will be required to ensure protection from liability issues. Health care professionals should also seek legal counsel to better understand how they are covered and what they will need to ensure that they can safely give medical advice via telemedicine.