Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Telemedicine and Its Liability Implications

Gregory A. Chaires, Esq. JoAnn M. Guerrero, Esq., LHRM
Chaires, Brooderson & Guerrero, P.L.
6-3-1 While the concept of telemedicine has emerged well over the last decade, its application has only slowly been interpreted and analyzed by medical boards, national associations and courts across the nation. However, the sluggish evolution of interpreting law has certainly not precluded physician disciplinary action  and  frustration within the medical community regarding the use of telemedicine.   The benefits of telemedicine  include greater patient access and reduced in-office patient load. The concept has been appreciated for its applicability to address issues from radiologic interpretation and pathologic interpretation to patients’ minor infections, rashes and colds, after the patient has already seen a physician and established a physician-patient relationship. This article will focus on the issues for a Florida provider concerning telemedicine.   Is Telemedicine defined in Florida?   The Florida Board of Medicine (the “Board”) has addressed telemedicine in the past but not as much as one would think given the size and patient population of Florida. The only rule published by the Board that addresses telemedicine is Rule 64B8-9.014, F.A.C. The Rule states that telemedicine includes, but is not limited to, prescribing  legend  drugs  to  a  patient  through  the internet, telephone and/or facsimile. The rule is geared specifically to the Standards for Telemedicine Prescribing Practice and does not address one of the more common uses of telemedicine, and that is teleradiology.   The authors note that the Board has been supportive of the concept of telemedicine but there is not particularly much written guidance or disciplinary action guidance available for providers. The U.S. Government supports the use of telemedicine, which has been adopted and is in use by the Veteran’s Administration health care facilities and through the Indian Health Services Administration. Moreover, Medicare reimburses for the use of telemedicine, the largest source of which is through teleradiology.   Prescribing Via the Internet   In 2003, the Board promulgated the Standards for Telemedicine Prescribing Practice, Rule 64B8-9.014, F.A.C. This Rule was written to address the significantly growing issue concerning the prescribing of medications over the internet. In summary, the Rule provides that prescribing medications based solely on an electronic medical questionnaire constitutes the failure to practice medicine within the standard of care, as well as prescribing legend drugs other than in the course of a physician’s professional practice. See 64B89.014 (1), F.A.C. The Board requires through the Rule, that physicians and physician assistants shall not provide treatment recommendations, including issuing a prescription, via electronic or other means, unless the following elements have been met:  

1. A documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed.

2. Discussion between the physician or the physician assistant and the patient regarding treatment options and the risks and benefits of treatment.

3. Maintenance of contemporaneous medical records meeting the requirements of Rule 64B8-9.003, F.A.C.

  The Board stated however that the provisions of its rule are not applicable in an emergency situation, i.e., those situations where the prescribing physician or PA determines that the immediate administration of the medication is necessary for the proper treatment of the patient, and it is not reasonably possible for the prescribing physician or PA to comply with the rule prior to providing such prescription. See 64B8-9.014(3), F.A.C.   Additionally, the Board specifically explained that the rule is not intended to prohibit patient care in consultation with another physician who has an ongoing relationship with the patient and who has agreed to supervise the patient’s treatment, including the use of any prescribed medications, nor on-call or cross-coverage situations in which the physician has access to patient records. Simply stated, a physician must perform a history and physical/ patient evaluation prior to writing any prescription unless either immediate administration is required or it is not reasonably possible to perform a history and physical or if the prescribing physician is in consultation with another physician or is an on-call or cross-coverage relationship with the patient’s physician. Similarly, the Florida Board of Osteopathic Medicine has promulgated a telemedicine rule which also proscribes the prescribing of medicine for patients who the physician has not personally examined. However, they too have also indicated that such regulations should not interfere with interstate consultation between physicians. See 64B15-14.008, F.A.C.   Application of Rule 64B8-9.014, F.A.C   In 2006, the Florida Board of Medicine considered the case of DOH v. Mathew Wise, M.D. Dr. Wise, who lived in New Mexico and was licensed in Florida, operated a website known as getthepill.com, which provided prescriptions for contraceptives to those who responded to an internet medical questionnaire and his instructions. Upon considering the facts of the case, the Board determined, by clear and convincing evidence, that Dr. Wise failed to comply with the Florida Telemedicine Rule, as he solely relied upon an internal medical questionnaire and failed to document a patient evaluation, including a history and physical, to establish the diagnosis for which the legend drug was prescribed, discuss patient treatment options and appurtenant risks and benefits and maintain contemporaneous medical records. The Board suspended the physician’s Florida license for six (6) months,  followed  by  a  two-year  probation  and $10,000 fine.   Recently, clinicians in South Carolina, Minnesota and Georgia received 60-days license suspensions from the North Carolina Medical Board after providing internet consultations for an online North Carolina company, and writing prescriptions for its patients without examining the patients or establishing a physician-patient relationship. In so doing, the Board determined that the clinicians’ actions substantiated a finding of unauthorized practice of medicine within the state.   Another case which made headlines was that involving a 19-year old Stanford University student in California, who committed suicide following treatment by a Colorado physician. It was alleged that the physician, without ever seeing or examining the student, prescribed a generic form of Prozac after receiving the student’s request over the  internet.    The parents of  the  student  subsequently dropped their suit against the physician, who surrendered his Colorado medical license, however the criminal case continued. The First District Court of Appeal in San Francisco subsequently determined that a California county can prosecute an individual who writes a prescription in another state for a Californian, if it is known that the medication will be delivered in California.   Physician Assistants   Like physicians, PAs cannot provide treatment recommendations or issue a prescription via telemedicine unless the PA has performed a history and physical for which the drug at issue is prescribed. The purpose of the law is for a practitioner to obtain thorough patient information, facilitate discussion with the patient of treatment options, and related risks and benefits and maintain appropriate contemporaneous documentation in accordance with existing Florida law. However, again, the rule does not apply in emergency situations or to on-call or cross-coverage situations where the physician has access to patient records.   Radiology   While the Board does not have a specific rule addressing the reading of x-rays and other diagnostic imaging studies, it has long taken the position that a provider who sends his or her imaging studies out of state for review by a provider that is not licensed in Florida, shall be deemed to have performed the primary read/interpretation of the films and thus be responsible for any errors or misreads. This position results simply from one of control over the quality of medicine practiced in Florida. The medical quality assurance boards in Florida are charged with  protecting  the  health, safety and welfare of the citizens of the state of Florida. The various medical quality assurance boards, like the Florida Board of Medicine, do not have jurisdiction over a licensee in another state, unless that individual is licensed in Florida. If a provider in Florida simply states that the interpretation was performed by someone else, then the Board has no way, in that instance, to protect the patient that received care in Florida. It cannot discipline the physician in another state, nor can it make the other state discipline the physician either. While Florida requires that a person have a license to practice medicine in the state of Florida, it is very difficult to pursue a practitioner not licensed in Florida who provided medical services and may be, for example, in Washington State.   With the onset of telemedicine has been the concomitant evolution of domestic and foreign outsourcing. Most of the outsourcing of teleradiology is to capitalize on time differences (a radiologist in India will read images while radiologists in the United States are fast asleep.) As a result, many are urging the Board and legislators to better delineate the practice of telemedicine given Rule 64B8-9.010, F.A.C., which provides:   “Physicians who order, perform, or interpret diagnostic imaging tests or procedures are responsible for the appropriateness and quality of the non-invasive diagnostic procedure, interpretation of the results, diagnosis, and either maintenance of medical records or provision of the results of the test to the referring physician.”   Florida and many other states mandate that any radiologist who provides an official or primary interpretation relied on for treating a patient in their jurisdiction is practicing medicine. Consequently, such radiologists must apply for and receive a license in the state within which the patient is located. These states typically exempt occasional out-of-state interpretations or  consultations  done as second opinions. See Teleradiology: An Underdeveloped Legal Frontier (RADLAW: September 2005 ACR Bulletin) Tom Hoffman, ACR Associate General Counsel   Consultations   We feel the need to address the difference between a consultation and telemedicine. Rule 64B-2.001(7), F.A.C., states that a consultation encompasses the actions of a physician lawfully licensed in another state, territory or foreign country. Such physician is permitted to examine the patient, take a history and physical, review laboratory tests and x-rays, and make recommendations to a physician duly licensed in this state [Florida] with regard to diagnosis and treatment of the patient. According to the rule, the term consultation does not include such physician’s performance of any medical procedure or for the rendering of treatment to the patient.   As you can see, a consultation is something different than providing the primary medical diagnosis or treatment. The rule contemplates that regardless of who a Florida physician consults with, he or she is still responsible for the medical decision making and care and treatment of a Florida patient.   Looking ahead   Recently, a Petition for Declaratory Statement concerning the practice of telemedicine was scheduled to be heard at April 4, 2009, the Florida Board of Medicine. The Petitioner sought the Board’s opinion as to whether a pathologist must perform a physical examination before ordering a diagnostic test if the test is directly requested by the patient. More specifically,  the  Petitioner sought the Board’s clarification as to whether 458.331(1)(m), Fla. Stat. requires a pathologist to perform a physical examination on a patient before ordering a diagnostic test, where there is no referring physician. An additional issue presented in the request for a declaratory statement was whether the act of ordering a test requested by a patient would be considered the practice of telemedicine under Rule 64B8-9.014, F.A.C. The petition was withdrawn and not heard by the Board.   Finally, the issue of telemedicine was recently considered by the Florida Legislature in Senate Bill 456. Known as the “Deputy Anthony Forgione Act,” the bill was recently signed into law by Governor Crist in May 2009 and is scheduled to take effect on July 1, 2009. The law concerns involuntary inpatient and outpatient placement and notes that a second opinion authorized within the context of that law may be conducted through a face-to-face examination, in person or by electronic means. Under the Act, electronic means is defined as “a form of telecommunication that requires all parties to maintain visual as well as audio communication.” See 394.455(38), Fla. Stat.   It will be interesting to see what direction the Board moves in the coming years as telemedicine is certainly going to become more and more prevalent. It does provide a critical role in the delivery of health care services.