By Femi Obikunle
TELEMEDICINE involves remote diagnosis and treatment of patients through telecommunication technology. It is manifestly beyond diagnosis and prescription through telephone as the average person tends to think.
Telemedicine allows patients to access medical expertise quickly and efficiently without the need to travel. Telemedicine services can be used for a number of non-emergency situations such as diagnoses of common medical problems such as allergies, asthma, bronchitis, cold, or flu, ear infection, pinkeye, rashes, digestive problems, and many other issues.
Some of the potential benefits of telemedicine include increased access to health care (especially in underserved areas and among underserved populations), expanded utilization of specialty expertise, system coordination and integration, ready availability of patient records, and reduced opportunity costs of care for patients.
These advantages and benefits of telemedicine practice must be balanced with the reality of any professional practice. Professionals are individuals who have passed rigorous examinations, are licensed to practise, subscribe to ethical guidelines and mandatory continuous post-qualification training.
Employers and telemedicine practitioners ought to be concerned about medical malpractice claims, and how the use of telemedicine may affect their legal responsibility. Telemedicine may give rise to complex legal issues for medical practitioners in Nigeria if proper procedures and guidelines are not followed.
These claims may arise from:
i) Malfunctioning of telehealth equipment
ii) Wrong diagnosis
iii) Wrong patient records access
iv) Non-access to patient records
v) Prolonged downtime of telemedicine system
vi) Professional negligence of telemedicine practitioners
vii) Failure of telepharmacy
viii) Post-telesurgery complications
ix) Employers’ collateral liability
x) Telemedicine employees malfeasance
Telemedicine insurance plays a very fundamental role in ensuring that professionals and their employers are financially protected against these claims.
Malpractice describes a breached duty owed by someone rendering professional services to a person who has contracted for such services. According to Gostin (2000), the mortality resulting from medical errors each year in USA is estimated to be between 44,000 and 98,000 per year, accounting for more deaths than motor vehicles crash, breast cancer, or Acquired Immunodeficiency Syndrome. It is instructive at this juncture to review the trend of Malpractice claims in a North American State.
No-Fault Compensation for Medical Injury: A Case Study: According to Horwitz and Brennam (1995), Florida found itself facing a crisis in medical malpractice liability in the 1970s and 1980s. Between 1970 and 1975, more than twenty medical malpractice insurers cancelled their coverage of Florida physicians, and by the mid-1980s the state’s largest malpractice insurer ceased doing business there altogether.
The major reasons for this closure of malpractice claims were increasing, particularly for obstetrics; and severity of claims (that is, the amount paid out) also was increasing, again particularly for obstetrical cases. Clearly, a legislative response to the perceived crisis was called for.
In 1988, Florida passed a bill transferring liability cases for newborn infants’ neurological injuries from the tort system to a no-fault system. Unlike the tort system, no-fault liability compensates patients who suffer any treatment-induced injury, not just those that can be traced to medical malpractice, or negligence (Horwitz and Brennan, 1995).
This is a qualitative advisory for countries that are yet to embrace telemedicine practice.
In USA, Kilpatrick and Cody (2009) from Georgia Telemedicine Center (College of Medicine) stated that “a current argument has been made that a physician carrying out consulting services in telemedicine should be protected from malpractice claims from a referring physician.
Current case law suggests that courts will find a physician-patient relationship, and hence contractual obligation exists in telemedicine. According to Kilpatrick and Cody (2009), the courts determined that the following factors to form the basis of such relationships:
1) If the Consultant has met the patient, or know the patient’s name;
2) If the Consultant examined the patient’s chart;
3) If the Consultant examined the patient;
4) If the Consultant accepted a fee for his, or her services.
It is possible for a consulting physician to establish legal physician-patient relationships if any of these conditions are met. Group professional liability insurance reduces cost for individual practitioners as the following example demonstrates. Some experts in the field of telemedicine argue that telemedicine reduces individual practitioner’s liability because the practice involves collaborations between several healthcare professionals.
However, there is a general consensus that telemedicine raises patients’ expectations which could lead to malpractice claims when their needs are not fulfilled. In addition, the practice itself could challenge an insurance company with regards to the grey area of coverage provided that may not be properly written.
According to a round table discussion coordinated by Diane Hoffmann, who is a Professor of Law at the Maryland School of Law and Health Program ( 2010), “ there has been a lack of telemedicine malpractice cases from which to draw some ground rules about legal risks associated with telemedicine.
The majority of legal actions that have been associated with telemedicine were brought against providers who prescribed medication over the internet, rather than claims brought against providers for negligent care administered through telemedicine.”
The case study was designed to stimulate discussion involved the provision of Tele oncology consultation services by a medical center in one state to patients in another state.
The complicated fact pattern included a patient (Kay) located in Oklahoma and diagnosed by her attending physician (Dr. Local) with lung cancer but also being seen by a consulting oncologist Although there are few legal cases involving telemedicine, there is a widespread assumption that telemedicine may pose new complications to traditional medical malpractice claims, in particular jurisdictional, choice of law, and procedural issues and duty of care concerns.
As the use of telemedicaaaa2ine grows, malpractice claims relating to telemedicine services may increase and, if so, these complications are likely to create a new body of law.
Another illustrative malpractice claim is expounded in a recent case in Telemedicine malpractice that related to online prescribing was that of a United States doctor who was sentenced in 2017, to nine months in county jail with a fine of more than $4,000 for practicing medicine in a patient’s home state without being licensed in that state.
It began when a patient filled out an online questionnaire. The website forwarded their responses to a processing firm which sent them to the physician, who was subcontracting for an online pharmacy and prescribed an antidepressant to the patient. Shortly after filling the prescription, the patient committed suicide.