Telemedicine became an important part of health care when the Covid-19 pandemic necessitated a Public Health Emergency (PHE) in March 2019. Although the PHE was cancelled in the Commonwealth on June 15th last year (Boston doesn’t end its own PHE order until April 1st this year), it hasn’t meant a complete return to normal face to face health services. Protection for providers and clients of telemedicine services has continued through to today. If you are a patient who is about to use or has been using telemedicine to liaise with a health provider at any time you should know how your rights are protected.
What exactly is telemedicine?
Telemedicine or telehealth? Both terms are often used interchangeably, together with other terms like eHealth. In fact, there is a slight difference between telehealth and telemedicine, the former having a broader sense of meaning than the latter. Telemedicine is the provision of remote clinical services, while telehealth may involve non-clinical services as well. This article uses the term telemedicine by preference although the conclusions may also address the wider use of telehealth in Massachusetts.
Telemedicine is essentially any health service that is primarily mediated by electronic or digital means. This could mean using a simple audio communication service like a telephone, or digital audio app, or a web based video app like Skype or Zoom. Text based services like email are also in use. Most health providers who offer a telemedicine service should have an online portal which is better protected from potential data theft than public digital apps.
The development of telemedicine predates the pandemic, but its obvious advantage in protecting both health professionals and patients from transmission of respiratory or airborne viruses like Sars-Cov-2 meant a rapid increase in the volume of health services mediated through this platform.
The Commonwealth government responded to the need for telemedicine in the earliest days of the pandemic by enshrining protections in law to both health providers and patients from the misuse of telemedicine or any reluctance on providing telemedicine services as part of normal health insurance packages. One other way in which telemedicine was promoted during the pandemic was to cancel the need to have a face to face medical appointment before providing medical advice or treatment through electronic means.
Apart from separating practitioners and patients because of Covid-19, the main aims of telemedicine include:
- making health care available to patients who live in a rural or isolated location or are currently interstate and far from their normal doctor or health provider;
- making health services available to anyone who has difficulty in attending physical clinics or surgeries;
- providing easier access to some health specialists;
- providing ongoing support for the self-management of health care.
Limitations of telemedicine
Despite the many advantages of telemedicine there are also limitations and potential negative outcomes which could affect some patients in some circumstances. The two main potential negative outcomes are:
- breach of data privacy due to insecure method of telemedicine communication;
- negative health outcomes due to misdiagnosis, mistreatment, drug or medication misuse, failure to detect
There are ways in which both telemedicine providers and patients can protect themselves from these potential negative outcomes of relying on telemedicine.
Personal data privacy encryption systems must be incorporated into the methods used in telemedicine services as standard practice. Any breaches of data privacy such as the leakage of personal medical records and other personal information are primarily the responsibility of the provider of telemedicine services, although patients should check with their provider before releasing any sensitive information that it is using a secure method of communicating data. If you believe that you have been the victim of a breach of data privacy as a result of lax data relay security you should talk to a personal injury attorney about the possibility of filing a lawsuit against the provider.
An over reliance on telemedicine may also result in several possible negative medical outcomes. Telemedicine is not an alternative to more intensive medical assessment which needs to take place in an appropriate medical center. Many tests, scans and x-rays, for example, cannot be performed electronically at a distance. Surgery cannot be performed via the internet. There are many reasons why physical examination of symptoms is essential and cannot be replaced by an audio or video examination alone, although this is obviously better than nothing at all. The possible opportunity for misdiagnosis of a new patient or a patient who presents with new symptoms is likely to be higher with telemedicine compared to a face to face assessment by a medical practitioner. Incorrect misdiagnosis may lead to the prescription of the wrong drugs or medications or the wrong dosages of any medications which are prescribed.
Misdiagnosis and negative medical outcomes due solely to the overuse of telemedicine may be considered medical negligence. Patients may then consider whether they should file a claim against the provider to obtain compensation for any illness or injury which results from the provider’s proven negligence. Any such consideration should be taken after careful assessment by an attorney with experience in medical negligence cases and knowledge of state laws including, but not limited to, the statute of limitations for medical negligence, the process required for providing proof of medical negligence, caps on non-economic damages due to medical negligence and the state’s modified comparative negligence rules.
The statute of limitations for medical negligence cases (not necessarily just telemedicine) is typically three years from the date of the alleged negligence, but may be extended to a maximum of seven years in some cases if the detection of the injury or illness caused by the negligence is delayed.
The process for proving negligence is quite complex and involves an initial “offer of proof” presented by the plaintiff to a special three person tribunal consisting of a judge, medical practitioner and an attorney within 15 days of any answer made by the defendant (the telemedicine provider) to the alleged claim.
There is a cap of $500,000 on any non-economic damages claimed by the plaintiff in Massachusetts.
The modified comparative fault law prevents a plaintiff from obtaining compensation if it is determined that he or she was more than 50% at fault for the injury or illness and any determined fault may reduce proportionally the amount of compensation obtained even if the plaintiff was less than 50% to blame.
Conclusion
The overall benefits of telemedicine meant its rapid uptake in use during the pandemic with enshrined legal protection by the Massachusetts state government. It is likely that telemedicine will continue to be a valuable part of health cover in the future despite the reduced effects of Covid-19. There are some potential disadvantages of using telemedicine which could result in negative financial or health outcomes. Compensation when there is proof of negligence by the telemedicine provider may be obtainable, but legal representation by an experienced attorney is always advisable.
For more information, visit our website Mucci Legal or contact us for a free legal consultation today.