David L. Feldman, MD, MBA, FACS, Chief Medical Officer, The Doctors Company and TDC Group
Though telehealth was an established method of delivering care before the COVID-19 pandemic, it exploded during much of 2020 as healthcare practitioners faced an immediate need to reduce exposure by providing care—or at least triage—remotely when appropriate. Now that practitioners and patients are more comfortable with and able to have in-person visits, the need and desire for virtual visits has declined, although not to the same level as prior to the pandemic. Many believe there will continue to be a desire on the part of both patients and practitioners to use telemedicine for healthcare delivery going forward.
Under usual circumstances, telemedicine is comparatively low risk. That said, telemedicine brings certain specific risks to both patient safety and practice liability. Minimizing those risks calls for adapting daily practice routines around informed consent, documentation, and other standard components of a patient encounter, as well as adjusting the practice’s insurance coverage.
The following are seven recommendations for any medical or dental practice providing care via telemedicine:
- Distinguish between new and established patients.
The foundation of care remains the practitioner-patient relationship. If someone you have been seeing calls with a problem, it is appropriate to either speak with the patient on the phone or have some form of video chat, regardless of their location, so you can establish the level of care needed.
With new patients, however, proceed with caution. During the pandemic, some restrictions on virtual first visits were relaxed—but just because you can treat a new patient by telehealth does not mean you should. A new patient may be more difficult to assess by remote means, and new patients are also more likely to be experiencing an acute situation that is not appropriate to treat by telehealth. As a rule, see a patient in person for the first visit.
Both first visits and ongoing care will need to comply with state licensing regulations. Check the webpage for your state’s health authority for updates regarding state-to-state licensing issues. (For more information, see our article, “Interstate Licensure for Telehealth Can Fuel Medical Practice Growth.”)
- Maintain privacy.
Consider who is in the physical space or within listening distance of the conversation when treating patients by phone or video chat. This includes other people in the patient’s space—and in yours.
Practitioner-patient conversations are confidential. It is up to patients to determine who can be with them in their home environment during the visit, but it is the practitioner’s responsibility to discuss the question of confidentiality. Also, you want the patient to know who from your staff is participating—unlike with an office visit, the patient may not know who is in the room.
- Prepare the patient before the appointment.
Talk to your patients about whether it is in their best interests to pursue care by remote or virtual visit. This obviously depends on your specialty and the patient’s presenting concerns. When using this modality, as with any other, let patients know that they have a right to stop or refuse treatment.
Consider not only your technology, but also what equipment patients are using. Have your staff review technology needs with patients before you begin.
Receive informed consent from the patient for telehealth treatment. This conversation does not take long. A telehealth-specific informed consent form may already exist within your electronic health record system. As an alternative, The Doctors Company has created a sample informed consent that you can adapt to your practice. But at a minimum, get your patient’s verbal consent to consult by telehealth—and document that approval in the patient’s record—before forging ahead.
Agree with your patient about what you will do if a technology malfunction occurs, whether you will resume by phone or have the patient come to the office in person.
You also want to talk to the patient about what telehealth means for billing. You may tell the patient, here’s what your insurance company says about it or we don’t know what your insurance company is going to say about it. States and insurers have made a variety of exceptions to their usual rules during COVID-19, but the exceptions keep changing—with some reverting to a prior rule and others changing permanently—so check with each insurer frequently. The Centers for Medicare and Medicaid Services continue to periodically post payment updates.
First and foremost, do what you think is in your patient’s best interest as guided by good clinical judgment. Providers need to be able to support their practices, but the payment has to come secondary to doing the best for your patient in whatever environment we are in.
- Develop your web-side manner.
Consider your surroundings as you prepare for video visits. You may realize that the brightly colored and patterned wall hanging behind you could be distracting and choose a plainer background. For video consulting, imagine the visit from the patient’s point of view, and create a professional tone.
With newer patients, consider donning your white coat (if you weren’t wearing it already), and make sure that your badge is visible. Clothing looks different on camera than it does in person so, when possible, choose solid colors over multicolored patterns that can create a rainbow effect. Good colors for video include earth tones, like deep blues, purples, and teal green.
A little common sense will go a long way in removing distractions and maintaining a professional tone during telehealth visits.
- Call on creativity to “examine” patients remotely.
It is true that some symptoms and conditions simply must be evaluated in person and are not appropriate for care by telehealth. A virtual exam may, however, be more informative than you would think. For instance, peritonitis can be assessed by asking the patient to jump up and down. Musculoskeletal injuries may be assessed using the Ottawa knee and ankle rules. For more information about remote evaluation tools, start with the April 2020 article in NEJM Catalyst, “The Transition from Reimagining to Recreating Health Care Is Now” and “Strategies for Effective Patient-Assisted Telehealth Assessments.”
- Consider additional insurance needs.
In the last year, a number of institutions, including healthcare, have been affected by cybercrime. Most experts believe that this situation is unlikely to improve, so you should consider seeking increased cybersecurity coverage.
This is also a good opportunity to review your business associate agreements with technology providers to understand who will be liable in case of a breach. Privacy liability is critical.
Business interruption insurance should also be reviewed. For providers with a significant portion of the practice delivered via telehealth, any interruption in communication technology can be considered business interruption. Consider adding or increasing your coverage in this area.
- Acknowledge when telehealth is not appropriate.
A practitioner using best judgment can say to a patient, it’s hard for me to fully evaluate your symptoms using this kind of encounter, and I need you to come in. It’s easier to miss things with telehealth, so when you have that second sense you are missing something, act on it.
Of the telehealth-related claims received by The Doctors Company, nearly 70 percent have alleged diagnostic errors, and most of those involved cancer. The risk of missing a cancer diagnosis by telehealth depends in part on your practice specialty.
If, in your best judgment, you believe that an in-person visit is called for, and you think that the risk of the patient coming to your office is less than the risk of not seeing them, then you should have the patient come to your office.
For assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or email@example.com.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.