Editor's note:For the latest news on COVID-19, visithttps://www.aappublications.org/news/2020/01/28/coronavirus.
The COVID-19 public health emergency (PHE) has caused pediatricians to dramatically ramp up their adoption of telehealth visits. While some medicolegal barriers to telehealth care have been lifted during the COVID-19 PHE, it’s a good idea to take reasonable steps to further reduce medical liability.
The following Q&A addresses common medical liability concerns about telehealth.
Q: Will my malpractice coverage be applicable to telehealth medical encounters?
A: The majority of medical liability insurers say that virtual visits are covered within the scope of your medical malpractice policy. A few require adding endorsements or riders to primary liability policies to cover telehealth visits. Some insurers specify that inclusion of telehealth coverage applies only during the COVID-19 PHE. Because of these nuances, consult your malpractice insurer to verify your protection. For added details, consult the AAP Guidance on the Necessary Use of Telehealth During the COVID-19 Pandemic, https://bit.ly/telehealthguidance
Q: Can I see high-acuity or new patients via telehealth?
A: Physicians have some discretion in determining which patients and conditions to manage remotely. Most televisits in primary care settings are for low-acuity conditions with established patients. Some low-acuity visits may need more than telehealth. For example, most sore throats in adolescents may be viral, but strep pharyngitis or infectious mononucleosis might require laboratory referrals for testing and appropriate follow-up.
If you encounter a high-acuity condition via telehealth and do not refer the patient for an office visit or to the emergency department (ED), you will incur potential liability risk if an adverse event occurs. However, that liability doesn’t differ from what you would face if you failed to make a necessary referral following a face-to-face visit or telephone call.
Establishing a new physician-patient relationship via telehealth is a significantly higher medical liability risk due to not ever having performed a complete physical examination or having a complete medical record of past visits.
Q: What about the Health Insurance Portability and Accountability Act (HIPAA) and patient confidentiality?
A: The U.S. Department of Health and Human Services Office for Civil Rights has waived penalties for HIPAA violations against health care providers serving patients in good faith through non-HIPAA compliant communications technologies such as FaceTime or Skype during the COVID-19 PHE (https://bit.ly/2zgiTtS).
Various HIPAA-compliant telehealth platforms also are available and would be important to have once the COVID-19 PHE is over.
Yet physician-patient conversations are confidential. Make sure that you are in a quiet space away from others who could hear the telehealth conversation. Advise your patients to do the same. This is especially important for visits which adolescents who may not want others to overhear the telehealth visit.
Q: How and what do I document in the patient’s record?
A: The handwritten note or electronic health record must memorialize all aspects of the telehealth encounter. Key elements would be who was present, the agreement to informed consent (either verbal or by form depending on the guidance of your medical liability insurer), the patient and provider location at the time of the visit, the presenting problem, current and relevant history, review of systems, medications and allergies. The physical exam likely will be limited. Note in the medical record the elements of the exam that were not performed that you would have completed had that visit been conducted in person.
The record also should include the suspected diagnoses and treatment plan as well as necessary follow-up. Document any admonitions or warnings indicating the need for return or ED visit.
Q: I’m not comfortable with seeing patients remotely. What are some of the medical liability risks of temporarily closing my practice during the COVID- 19 pandemic?
A: Telehealth is not your only option during the COVID-19 PHE. The AAP advises pediatricians to continue seeing infants, children, adolescents and young adults and provide preventive medicine services in person as long as it is safe for both families and patient care teams to do so in their physical environment. Visits associated with immunizations should be prioritized, according to AAP Guidance on Providing Pediatric Well-Care During COVID-19, https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/guidance-on-providing-pediatric-well-care-during-covid-19/.
If you decide to close your practice temporarily, you will need to take steps to avoid being liable for patient abandonment. You can adapt the AAP guidance and resources at https://bit.ly/35Fjstf. Notify patients of the temporary closure, where they can obtain care during the closure and how the patients or their temporary providers can obtain medical records. Document these notices in patients’ charts. Make others aware of your temporary closures such as referring colleagues, vendors and suppliers, and government agencies. Your medical malpractice insurer can provide guidance and may offer some premium relief.
Post the notification of temporary closure on the practice website, telephone messaging, office door and other communication vehicles.
If you close your practice and stop all forms of communication with patients without adequately notifying them and referring them to where they can access pediatric care, you may be sued if an adverse event directly resulting from the closure occurs, and you may be liable for charges of patient abandonment (https://bit.ly/wellcareguidance).
Q: What is the “standard of care” for telehealth visits?
A: Providing care via telehealth has limitations. The same “standard of care” applies to telehealth visits as in-person visits. Keep this in mind when determining the patients and conditions you decide to see remotely. If hands-on examinations, onsite laboratory tests or other services are necessary to manage a condition, recommend an in-person visit at an appropriate setting.
Since this new form of practice likely will continue beyond the containment of COVID-19, pediatricians will need to reassess their medical liability risks and insurance coverage once various legal requirements are no longer relaxed.
Dr. Oken is a member of the AAP Committee on Medical Liability and Risk Management.
