Telehealth malpractice issues this spring

Telehealth has transformed healthcare delivery in California, offering convenience for patients while raising unique liability considerations for providers. This medical malpractice coverage guide addresses telehealth-specific issues that California providers should understand.

Telehealth Standard of Care in California

California treats telehealth as a tool within medical practice, not a separate discipline with different standards. Healthcare providers using telehealth are held to the same standard of care as those providing in-person services. The Medical Board of California emphasizes that all responsibilities for informed consent, privacy, and professional conduct apply equally to telehealth interactions.

Licensure Requirements

To provide telehealth services to patients located in California, providers must hold a valid California license regardless of where the provider is physically located. This applies to physicians, nurses, therapists, and other licensed healthcare professionals. Practicing without proper California licensure can result in disciplinary action and significant malpractice exposure.

Informed Consent for Telehealth

California law requires informed consent before delivering telehealth services to patients. This consent can be verbal or written and must be documented in the patient’s medical record. Circadian Insurance Brokers recommends developing standardized consent processes that address:

1. The specific technology being used for the clinical encounter
2. Privacy and security considerations for electronic communication
3. Limitations of telehealth examinations compared to in-person visits
4. Emergency protocols if urgent in-person care is needed

Medical Malpractice Coverage Guide for Telehealth

Coverage Considerations

1. Verify your professional liability policy explicitly covers telehealth services
2. Confirm coverage applies to patients in all states where you practice
3. Understand any exclusions related to technology failures or security breaches
4. Review coverage limits in light of expanding telehealth patient volume

Risk Reduction Strategies

1. Use only HIPAA-compliant technology platforms for patient encounters
2. Document telehealth encounters as thoroughly as in-person visits
3. Establish clear protocols for situations requiring in-person examination
4. Train all staff on privacy requirements specific to telehealth delivery

Common Telehealth Liability Risks

Telehealth presents specific liability exposures providers should understand:

1. Diagnostic limitations when complete physical examination isn’t possible
2. Technology failures interrupting care or causing missed communications
3. Privacy breaches during electronic transmission of health information
4. Prescription practices without adequate prior examination documentation
5. Jurisdictional issues when treating patients across state lines

Prescribing Via Telehealth

California regulations require an “appropriate prior examination” before prescribing medications. While this examination doesn’t need to be conducted in-person, it must meet the applicable standard of care. Thorough documentation of telehealth examinations is essential for demonstrating regulatory compliance.

Privacy and Compliance

All telehealth services must comply with HIPAA and relevant California privacy laws. Providers should ensure encryption of communications, secure storage of telehealth recordings and notes, and proper training for all staff involved in telehealth delivery.

This article provides general information and is not insurance advice.

References

1. Medical Board of California – Telehealth
2. Center for Connected Health Policy – California Telehealth Laws
3. HHS – Telehealth and HIPAA