Within the last decade, researchers have focused on teledermatology as a solution to accessibility issues associated with dermatology services as well as the overall improvement of the patient experience. Ranging from online consultations to AI-assisted surgery, telemedicine and teledermatology refer to any practices related to the use of electronic communication to convey medical information. Novel methods of streamlining the patient-provider relationship have increased the amount of store-and-forward platforms, which allow for the exchange of medical data, increasing cost-effectiveness and making health care more accessible. The rise of telemedicine, while indicative of great advancements in technology and an adoption of increasingly digitized provider-patient interactions, carries with it a significant amount of potential liability issues.
Now a major part of many dermatology practices, teledermatology presents a unique set of legal concerns. Several state legislations have focused their efforts on promoting the adoption of telemedicine, hoping to foster its growth and ensure appropriate use. For clinicians who practice teledermatology, or are looking to incorporate it into their service offering, it is essential to maintain a strong understanding of the law and be able to navigate the liabilities of the practice. In a Dermatology Times report SBS Faculty and Planning Committee member, David Goldberg, MD, JD outlines the three key concerns associated with current teledermatology practices and their potential implications.
Liabilities of Telemedicine
A primary concern in the field of teledermatology is licensure – or whether clinicians exceed their licenses according to state law by taking their practice online. Inappropriate use of a license as a predicate to practice telemedicine can result in disciplinary action thus, it is necessary for physicians to consult state law to determine whether their license allows them to serve as a telemedicine practitioner.
Another concern is the unlicensed practice of medicine in other states. Although there is currently no national consensus on state demands for out-of-state medical practitioners, certain states may require full licensure, some offer restricted licenses, while others offer licensing by endorsement under reciprocity agreements with other states. Insufficiently licensed physicians may be subject to prosecution. In general, if there is a regular, ongoing telemedical practice within the state, the law will require licensure to some degree.
2. Insurance Coverage
While certain states require health insurers to cover work extending beyond state borders, others do not. The majority of malpractice policies specifically exclude coverage for unlicensed practices, and it is best to know what the specific state laws are and to obtain coverage in every state in which patients are served. Additionally, clinicians should go over the coverage awarded to them through their malpractice insurer, and may want to obtain surplus coverage to protect themselves.
3. Negligence Liability
Regardless of the digital nature of teledermatology, a medical malpractice action can be brought in against practitioners. When providing online medical services in states different from where the patient lives, it is important to note that most jurisdictions permit residents to bring lawsuits to places where a patient received care or where the physician’s office is located. Additionally, the plaintiff may bring the telemedicine practitioner into court in their state, while the state may require venue. For instance, Montana and North Carolina require telemedical malpractice claims by residents to be brought within their state.
Furthermore, different states take different approaches to the Standard of Care – some rely on the national standard, while others use a local version. Physicians should become familiar with the standards used in states in which they offer services, regardless of their practice location.
As the practice of telemedicine and teledermatology grows, national and state laws will continue to adapt to the rapidly changing demand. Despite the lagging regulatory and reimbursement policies, teledermatology is a burgeoning field with significant promise and growing success. As both patients and providers shift toward digital medicine, the liabilities of the practice will hopefully become clearer. In the meantime, implemented policies should aim to foster appropriate use of the technology and ensure both patient and provider legal protection.
Dermatologists should not fear incorporating teledermatology into their practice, however, they should have a comprehensive understanding of the potential liabilities. Clinicians can reference the article “The Legal Landscape of Teledermatology” published in The American Journal of Managed Care, which succinctly outlines the major legal concerns pertaining to the practice.