Article Date: 11/1/2001

Law Review
Telemedicine and You
Minimize your liability when sharing patient information electronically.
By Paul Peng, O.D., J.D.

Telemedicine is the delivery of medical care from a remote location. Currently, ocular telemedicine is one of the top five uses of telemedicine in the nation. So what's this trend all about? I'll explain.

Telemedicine in perspective

Telemedicine wouldn't exist if it weren't for ocular digital imaging. The number of eyecare professionals incorporating digital imaging into their practices is growing at an exponential rate. They're using digital imaging for medico-legal documentation, to educate patients, manage chronic conditions such as diabetic retinopathy, communicate professionally and even for remote teleconsultation!

New standards, new worries

With the recent legislative change that mandates Medicare to pay for telemedicine consults, digital transmission of patient information within cyberspace will become a new standard of practice. But as with any new standard of practice, you need to know how to avoid the potential lawsuit pitfalls. Consider the following case.

Caring for Mr. Doe

Dr. Mann practices in a rural region of state X. He recently equipped his office with a digital camera that's linked to the Internet.

Dr. Mann saw Mr. Doe, who had an interesting retinal lesion. Dr. Mann captured an image of this finding and explained it to Mr. Doe. Dr. Mann told him that he planned to send the image to Dr. Brown of State Y to take a look.

Based on Dr. Brown's comments, Dr. Mann referred Mr. Doe to a retinal specialist 100 miles away for a consult. The retinal specialist concluded that the lesion is benign and now Mr. Doe is upset because it was a nuisance for him to drive 100 miles. If Mr. Doe initiates legal action to recover damages for his time and effort, he may challenge Dr. Mann on the factors listed below.

Liability factors

Anyone who intends to send digital information regarding any patient should consider the following points:

Be mindful of standards

Telemedicine is an emerging field and numerous governmental agencies (including federal statutes such as HIPAA and Medicare) exist solely to regulate this problem. The government is trying to regulate telemedicine and has established such agencies, but many product users aren't aware that such standards exist. So in the event of a legal challenge, the patient can attack the doctor for not obeying the law.

Regulatory standards apply to the actual hardware or commercial packages, the actual digital images and all electronic records. It's important to know about these standards because they could legally interrupt your practice.

The bottom line is this: You can't just go to an electronic store and put a system together. If you do this and something goes wrong, these regulations will come into play against you.

Proceed with caution

As Medicare begins to reimburse digital imaging for telemedicine, interest will grow both economically and legally. Therefore, all participants must be aware of the potential for danger.

So before you rush into creating or buying an imaging system, remember what we discussed here because something that seems so right and easy could quickly become so wrong and difficult. As illustrated from our example, what seems like a simple situation is actually filled with factors that could lead to potential problems. 

DR. PENG IS IN PRIVATE PRACTICE IN CASTRO VALLEY, CALIF. HE'S AN ASSISTANT CLINICAL PROFESSOR AT THE UNIVERSITY OF CALIFORNIA, BERKELEY, SCHOOL OF OPTOMETRY. HE'S ALSO A CONSULTANT IN VARIOUS ASPECTS OF LAW INVOLVING OPTOMETRY.

 



Optometric Management, Issue: November 2001