Demystifying Telehealth: Navigating the Virtual Care Legal Landscape
Blog Post | 112 KY. L. J. ONLINE | November 21, 2023
Demystifying Telehealth: Navigating the Virtual Care Legal Landscape
By: Hannah Jelf, Staff Editor, Vol. 112
In today's society, people face various challenges when seeking healthcare. People have hectic work schedules, mobility issues, or live in rural areas, so taking time to drive to the doctor’s office or to spend time sitting in a waiting room while sick is not always practical. Seeing a doctor virtually from the comfort of home while lying on the couch or in bed is the perfect “medicine” for today’s busy lifestyles. These digital platforms, referred to as telehealth, utilize technology to provide medical consultations, diagnoses, remote patient monitoring (RPM), and through treatment via messaging apps, video calls, and phone calls.[1]
Use of telehealth saw exponential growth during the COVID-19 pandemic.[2] Today, telehealth continues to grow, as usage is thirty-eight times higher than before the pandemic.[3] In 2018, 14.2 million patients used telehealth services, compared with 27.6 million users in 2022.[4] Furthermore, another survey, conducted by the Centers for Disease Control and Prevention (CDC) in 2021, shows that 37% of adults used telehealth.[5]
Benefits and Drawbacks of Telehealth
One positive impact of telehealth is that it increases access to healthcare resources, specifically among patients living in areas with limited providers, those living in rural areas, and those with constrained mobility.[6] Additionally, telehealth provides both convenience and flexibility, as patients can receive care from the comfort of their own homes.[7] There is no commuting, less wait time, and no exposure to other illnesses.[8] By reducing travel times and expenses, telehealth improves the financial efficiency of healthcare providers.[9] It allows providers to offer more appointment times to their patients. Lastly, telehealth offers the potential for providers to better communicate with patients through more follow-up appointments and monitoring.[10]
Unfortunately, there are, however, some drawbacks regarding the use of telehealth.[11] Technology can be considered a negative for the older population due to their potential lack of digital literacy skills and modern technology knowledge.[12] This limitation might result in an intimidating and overwhelming learning curve. For example, age-related hearing or vision loss as well as fine motor skill issues can make it harder to use touch screens and view small text.[13]
Additionally, within these platforms, there are conditions that create difficulty for healthcare providers to diagnose without comprehensive physical examinations.[14] This could result in inaccurate or delayed diagnoses.[15] Healthcare providers may have to rely on the patient’s analysis, which can be imprecise and subjective. Moreover, a lack of nonverbal cues, such as body language and gestures that could be signs of anxiety, discomfort, or distress, may be missed through the telehealth mode.[16] Lastly, during remote health visits, there is limited access to diagnostic tools that may be necessary, such as X-ray machines, ultrasound devices, and various laboratory tests.[17] This limitation of testing ability makes it difficult to formulate a precise diagnosis for the patients.[18]
Navigating the Telehealth Legal Landscape
While telehealth is a great service, it comes with legal ramifications. Healthcare providers must adhere to specific legal requirements to practice virtual medicine in the states where their patients are located.[19]
Furthermore, when diagnosing and treating patients remotely, telehealth raises questions about professional liability and malpractice. To guarantee the best possible care while lowering the possibility of malpractice lawsuits, providers must abide by set procedures and guidelines.[20] A telehealth visit may be appropriate for a patient if a doctor can diagnose the patient based only on self-reported symptoms and basic vitals.[21] A doctor should not rely only on the patient's self-report for a diagnosis requiring additional findings when the diagnosis calls for a physical examination, lab testing, or other impractical procedures.[22]
According to an analysis by a US-based professional liability provider, misdiagnosis accounted for 66% of telemedicine-related claims from 2014 to 2018.[23] This finding is consistent with research from Harvard Medical School, which found that 68% of cases that resulted in malpractice claims from experienced clinicians were related to diagnostic errors.[24] On the other hand, healthcare providers misdiagnose approximately 47% of in-person consultations, according to estimates.[25]
Privacy concerns are unquestionably relevant when it comes to telehealth.[26] Ensuring secure transmission and storage of patient data is imperative for telehealth platforms.[27] Sensitive data privacy safeguards include authentication and encryption protocols.[28] To protect patient confidentiality, healthcare providers should abide by privacy laws like the Health Insurance Portability and Accountability Act of 1996 (HIPAA).[29] To address these concerns and ensure the confidentiality of patients' health information, individuals should choose a reputable healthcare provider with strong security measures.
CONCLUSION
Telehealth uses technology to provide medical consultations, diagnoses, observations, and treatment that is done via messaging apps, video calls, and phone calls.[30] Telehealth provides patients with several benefits, including greater access to healthcare resources, convenience, flexibility, reduced travel and wait times, improved financial efficiency, and streamlined communication.[31] Telehealth also presents some drawbacks, however, including a potentially overwhelming technology learning curve, a lack of nonverbal cues, and limited access to diagnostic tools that create difficulties in formulating precise diagnoses.[32] Telehealth also raises several important legal issues.[33] Healthcare providers must manage their concerns to guarantee the effective deployment of all telehealth services.[34] Some of these legal issues include licensure requirements, professional liability, and patient privacy.[35]
[1] Telehealth: Defining 21st Century Care, Am. Telehealth Ass’n, https://www.americantelemed.org/resource/why-telemedicine/ (last visited Nov. 10, 2023).
[2] Euny C. Lee, Violanda Grigorescu, Idia Enogieru, Scott R. Smith, Lok Wong Samson, Ann B. Conmy, & Nancy De Lew, Updated Survey Trends in Telehealth Utilization and Modality, Assistant Sec’y for Plan. and Evaluation, (April 19, 2023) https://aspe.hhs.gov/sites/default/files/documents/7d6b4989431f4c70144f209622975116/household-pulse-survey-telehealth-covid-ib.pdf.
[3] Steven Zauderer, 49 Telehealth Statistics & Telemedicine Trends, Cross River Therapy, (June 30, 2023), https://www.crossrivertherapy.com/research/telehealth-statistics.
[4] Id.
[5] Jacqueline W. Lucas, & Maria A. Villarroel, Telemedicine Use Among Adults: United States, 2021, Nat’l Ctr. for Health Stat (October 2022), https://www.cdc.gov/nchs/products/databriefs/db445.htm.
[6] Brian William Hasselfeld, Benefits of telemedicine, Johns Hopkins Med., https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/benefits-of-telemedicine (last visited Nov. 16, 2023).
[7] Id.
[8] Shilpa N. Gajarawala, & Jessica N. Pelkowski, Telehealth Benefits and Barriers, 17 The J. for Nurse Practitioners 218, 218 (2021).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Tomáš Holčapek, Martin Šolc, & Petr Šustek, Telemedicine and the Standard of Care: A Call For A New Approach?, 11 The J. of Front. in Pub. Health 1, 3 (2023), https://www.frontiersin.org/articles/10.3389/fpubh.2023.1184971/full.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Gajarawala, supra note 8, at 219.
[19] Simon P. Rowland, J. Edward Fitzgerald, Matthew Lungren, Elizabeth Lee, Zach Harned, & Alison H. McGregor, Digital Health Technology-Specific Risks for Medical Malpractice Liability, 5 NPJ. Digit. Med. 1, 1 (2022). https://www.nature.com/articles/s41746-022-00698-3.
[20] Id. at 3.
[21] Id.
[22] Harvey P. Katz, Dawn Kaltsounis, Liz Halloran, & Maureen Mondor, Patient Safety and Telephone Medicine, 23 J. of Gen. Intern. Med. 517, 518 (2008).
[23] Id.
[24] Id.
[25] Rowland, supra note 19.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Telehealth: Defining 21st Century Care, supra note 1.
[31] Gajarawala, supra note 8.
[32] Id.
[33] Rowland, supra note 19.
[34] Id.
[35] Id.