Everything else in the world has changed, why not how we treat our doctors? If a doctor can only bill for a two-minute telemedicine consultation, why should that doctor be held to the ordinary standard of care? If insurance companies decide how much time doctors can spend with their patients, then why aren’t insurance companies the ones held liable when doctors don’t have enough time to make accurate diagnoses?

Just like everything else, the practice of medicine is changing. Even before the start of the COVID-19 pandemic, providers and patients were already seeking out more opportunities to provide and receive care outside of the traditional medical setting. Providers were looking for new ways to keep costs down in the face of increasingly stringent billing rules and increasingly prevalent audits and investigations, and patients were looking for ways to avoid the time, inconvenience, and expense of visiting their doctors in person.

Providers’ Needs and Patients’ Preferences Have Changed

This new patient preference – which, ultimately, may not have been truly new so much as newly amplified – spanned across generations. Patients in the millennial generation expect nearly everything to be at their fingertips, and many in the earlier half of the generation are now serving as surrogates for their parents. As a result, in addition to the concerns previously mentioned, medical providers have faced increasing pressure to adapt to this shift in consumer demand as well.

However, while patients and providers may have already been ready to move on pre-pandemic, the legal and regulatory systems were not. Regulation of telemedicine, with regard to billing in particular, has been (and is continuing to be) slow to develop, and case law is yet to recognize the disparities between telemedicine and in-person medical practice.

Enter the COVID-19 pandemic. When it became clear in the late spring and early summer of 2020 that the pandemic wasn’t going to end any time soon, the world began a dramatic and extraordinarily swift transition to life online. More so than ever before, people in all walks of life were doing things online in all capacities. Recognizing the immediate need for widespread access to telemedicine, some insurance companies and regulators opened the taps—a little bit. But, many challenges remained, and doctors still faced (and continue to face today) challenges that were directly attributable to the billing rules and regulations that apply to telemedicine.

The Pitfalls of Telemedicine in the Current Regulatory and Legal System

What are we talking about? Let’s consider two hypothetical examples. In example one, a patient visits her doctor’s office. She scheduled an appointment because she had been experiencing intermittent abdominal pain for about a week. During the consult, her doctor spends about five minutes asking questions, about five minutes performing a physical exam, and another five minutes consulting about possible diagnoses and recommended next steps. The patient leaves with instructions to get lab work, and the doctor bills for a 15-minute office consultation.

In example two, a patient calls in for a telemedicine consultation. The consultation lasts two minutes. The doctor’s best guess is that the patient ate something that is causing her mild discomfort, and she will probably feel better in a few days. The doctor doesn’t have enough time to ask enough questions before she is forced to move on to the next telemedicine patient. The patient goes about her day, and the doctor bills for a telemedicine consultation pursuant to the applicable billing guidelines.

But, in example two, that’s not the end of the story. The patient does not feel better in a few days. In fact, 24 hours later, she is in the hospital, where she is diagnosed with a ruptured appendix. After emergency surgery, she is further diagnosed with sepsis caused by peritonitis; and, tragically, she succumbs to her symptoms.

The next outcome is entirely predictable: Following the patient’s death, her family files a claim against the telemedicine doctor for medical malpractice. The allegation? Failure to diagnose. The family’s lawyer argues that the telemedicine doctor failed to meet the standard of care, and that this failure was a direct and proximate cause of the patient’s untimely death.

What Is (and What Should Be) the Standard of Care in Telemedicine Malpractice Cases?

Regardless of whether or not the doctor in the second example made a mistake, the contrast between these two hypothetical scenarios should be clear. In example one, the doctor had 15 minutes with the patient in-person to assess her medical needs and determine appropriate next steps. In example two, the doctor had two minutes to make an educated guess based on the information the patient was able to self-supply in just a fraction of that time.

Couldn’t the doctor in the second example simply have spent more time with the patient? Technically yes, however, there are practicalities involved. In order to receive payment for services rendered, telemedicine doctors must either (i) comply with the strict and limiting billing rules, or (ii) bill patients directly. Even setting collection issues aside, doctors cannot practically bill most patients outside of their insurance coverage, because they know that most patients would prefer to forego treatment than pay out of pocket.

“Despite the realities – and, let’s not forget, the critical importance – of telemedicine practice, telemedicine doctors are not held to an appropriately-tailored standard of care. There is no question that telemedicine practice is fundamentally different from seeing patients in person in a hospital or medical office. Yet, a doctor who gets two minutes with a patient over the phone is held to the same standard as a doctor who gets 15 minutes with a patient in person. It’s not fair, and it needs to change.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Just as family practitioners generally are not held to the same standards as specialists, telemedicine doctors should not be held to the same standards as doctors who provide in-person exams. These are two entirely different types of practice that require different approaches, different mindsets, and different rules.

What should the standard be? While there are several options, perhaps the simplest and most straightforward is to consider telemedicine providers to be their own “medical community.” Although definitions of medical malpractice vary from state to state, the rule for non-specialists is typically that they must adhere to the norms of their medical community—however that may be defined. By recognizing that telemedicine providers operate under a set of circumstances that is entirely different from in-person practice, the focus can shift away from impertinent comparisons to comparisons that make sense in light of the practicalities with which telemedicine providers are presented.

Not only is this approach fair for telemedicine doctors, but it is what is best for patients and health care as a whole. Long-term, what will happen if the standard of care is not adjusted to account for the practicalities of telemedicine practice? Inevitably, the potential outcomes will include:

• Increased insurance premiums for telemedicine practitioners. Since telemedicine doctors will face a higher number of medical malpractice claims and a higher rate of liability, their insurance premiums will increase.
• Limited medical advice for patients. Fearing the possibility of a medical malpractice lawsuit, telemedicine doctors will default to “I don’t know,” even when they have a sound justification for a particular diagnosis.
• More patients needing in-person care (at additional cost). Instead of providing diagnoses, telemedicine doctors will simply refer patients to other providers. As a result, patients will end up paying twice in order to receive a single diagnosis.
• No overall increase in the quality of patient care. Since patients will end up back in doctors’ offices, the overall quality of care will not change. More doctors will face medical malpractice lawsuits, less patients will have access to remote medical advice, and all other outcomes will remain the same.

In other words, there is no practical benefit to holding telemedicine doctors to an unattainable standard of care. Conversely, lowering the standard of care to reflect the realities of telemedicine practice would reduce costs and provide more patients with access to care—thus serving the fundamental purposes for which telemedicine was initially conceptualized. Telemedicine is not “inherently bad,” and while the standard of care may be lower with telemedicine, this is not necessarily bad, either. It gives more patients access to care; and, in most cases, patients will receive the care they need. Let’s not forget, doctors still owe ethical duties regardless of how the law defines malpractice, and the idea that doctors might “take advantage” of a reduced standard of care in order to provide unsound advice is simply misguided and uninformed.

Also, keep in mind that ultimately, it is not telemedicine doctors who decide how long they spend with their patients—it is insurance companies and government programs such as Medicare and Medicaid. If a doctor only gets two minutes with a patient, and if that doctor uses those two minutes to provide the best medical advice he or she can, why should that doctor be at risk? If the concern is that telemedicine patients might not receive the quality of care they need, this isn’t on doctors, it is on payors.

As the practice of medicine changes, the standards of the profession need to change as well. This does not mean reducing the quality of care patients can expect—far from it. Rather, it means ensuring that doctors are appropriately held accountable, and that doctors are not forced to avoid providing diagnoses and treatment recommendations out of fear of being sued.