Telemedicine During COVID-19

Telemedicine provides a clear and obvious benefit for those in need of medical care during the COVID-19 crisis. Staying home while receiving medical care protects the patient, health care providers, and all who come into contact with them. Using telemedicine services also helps reduce stress on overwhelmed hospitals and other healthcare facilities. Not surprisingly, the demand for telemedicine services has dramatically increased.  

In an effort to encourage and facilitate the use of telemedicine, the Center for Medicare Services has expanded, temporarily, coverage for telemedicine services. The Department of Health and Human Services has announced that it will “not impose penalties for HIPAA violations against healthcare providers in connection with their good faith provision of telehealth using communication technologies during the COVID-19 nationwide public health emergency.”

Licensing issues for healthcare providers practicing telemedicine still remain, however. Further, healthcare providers crossing state lines, via telemedicine, face myriad liability issues based on the wide variance in state laws regarding medical malpractice. For example, states have different caps on the amount a medical malpractice patient can recover, and these caps often dictate the amount or limits of a healthcare provider’s professional liability insurance coverage. HHS Secretary Alex Azar has urged state governors to relax or modify regulations in an effort to reduce healthcare providers’ exposure to potential licensure violations or liability issues related to telemedicine services, but to date, no federal legislation has been enacted that would preempt state laws on these issues. Thus, until a particular state acts, healthcare providers face the same risks they always have encountered when practicing medicine – via telemedicine or in person – across state lines.

Many states, including Indiana, have heeded the call and, in one form or another, loosened or modified licensing requirements. Liability issues remain, and a provider is still likely to be subject to the laws of the state in which his or her patient is located at the time of the telemedicine. However, as the general standard of medical malpractice requires an examination of the circumstances under which a healthcare provider was practicing at the time of the medical care at issue, the nature of the current healthcare crisis would intuitively provide some level of protection for those who go beyond their normal geographic practice area in order to help those in need of services. In other words, what is “reasonable care” during this crisis may differ from what is “reasonable care” at other times.

Healthcare providers often place the health and safety of those who need assistance ahead of liability concerns, and they will do what they believe is best regardless of potential exposure down the road. The legislature and legal system are, and should continue the practice of, recognizing this intrinsic quality of those in the medical field by protecting them from liability and eliminating barriers to expansion of practice during the current emergency. 

For questions contact the author William A. Ramsey at war@barrettlaw.com or at (260) 423-8824 or a member of Barrett McNagny's medical malpractice defense team or health care team.