Teledermatology fraught with liability issues

Dr. Cali, a practicing dermatologist in California, has spent the last several years looking for new revenues sources. He has a very active interactive website and associated blog. Because of this he receives hundreds of questions from potential patients all over the country.

Four years ago, before he began to charge for email consults, he received a photo from Kentucky of a classic blue nevus. He told the patient the lesion was nothing to worry about. It turned out he was wrong. The patient had a rare malignant blue nevus and died from metastatic malignant melanoma 18 months later.

Ultimately the deceased patient’s estate sues for negligence, wrongful death and practicing telemedicine without a license in Kentucky. Dr. Cali is horrified and seeks legal advice. Should he be worried?

“Telemedicine” is a term that covers any use of electronic communication technology to convey medical information. It can be as basic as seeking a consultation or as advanced as robotic surgery. Teleradiologists and telepathologists use electronic communication to send radiographs and specimen images for diagnostic or consultation purposes. Teledermatology can be practiced in the role of a consultant or as a seeker of consultation. However, this practice is fraught with liability issues.

1. Licensure

(i) Are you exceeding the license granted by your own state? If so, you can be subject to disciplinary action in your own state if you use your license inappropriately as a predicate to practice telemedicine. So you must determine if your state permits you to act as a telemedicine. (ii) Are you engaging in the unlicensed practice of medicine in other states? There is no national consensus on what states demand from physicians located outside their borders and are practicing telemedicine within any one state. Some states demand full licensure, some offer restricted licenses for telemedicine, and some offer licensing by endorsement under reciprocity agreements with neighboring states.

Despite the wide range of options, there is a common thread to keep in mind: if there is a regular, ongoing practice of telemedicine in the state (as opposed to an occasional consultation) the state will want some degree of licensure. A physician who lacks such licensure can be subject to prosecution for the unlicensed practice of medicine.

Next: Insurers may not cover telemedicine consulting

2. Insurance coverage

(i) Most malpractice policies specifically exclude coverage for unlicensed activities. Some states require insurers to cover work that extends beyond state borders and some do not. Know where your state stands and obtain coverage in any state with patients affected by your consulting if you do not have that protection. (ii) Does your carrier cover you for telemedicine practice? Telemedicine consulting may not be covered by your malpractice insurer and you may need to obtain surplus lines coverage.

3. Negligence liability

(i) Can a medical malpractice action be brought in the setting of telemedicine? Yes. (ii) Where can the action be brought? The issue of “forum shopping” comes into play if the doctor provided the telemedicine service in a state different from where the patient lives. Most jurisdictions will permit a resident to bring a lawsuit where the patient received care or where the defendant physician’s office is located.

Telemedicine obviously expands the scope of venue exposure. The plaintiff can bring the telemedicine consultant into a court in his state. A state may also require venue. For example, Montana and North Carolina both require that any medical malpractice claims by their residents that are based on telemedicine must be brought within their state. A physician who practices in a state with a short statute of limitations should not assume that time limit will apply if he is sued for telemedicine consult. Different states also take different approaches to the standard of care. Some use a national standard and some use a local one. The consulting telemedicine physician should therefore become acquainted with the standards used in the states they extend their practice to.

In the end, Dr. Cali should be concerned. The fact that he did not charge the now-deceased patient will be no defense.