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Telepsychiatry and Liability

These actual questions posed to me when I asked my professional liability (malpractice) carrier to cover me for conducting medication management sessions via audio/video connection using the Web, serve to illustrate some of the misconceptions about telemedicine and the extent to which state law and the courts irrationally interfere with progress, in some cases likely increasing risk.

·        [In] Which states will you practice telemedicine? If multiple states, do you have licenses to practice in each state?

Most states apparently regulate medical activity where the patient is rather than where the physician is or where either resides. If my patient travels there, California law may govern treatment I provide from my home state. Unless I am licensed in CA I risk running afoul of the law there. Patients and physicians should not have to worry about care provided during travel by either party or both. A national license could solve this problem, but don't hold your breath.

For now I plan to only treat patients who normally reside in my state. If I or the patient travel to other states, I plan to contact the licensing board of the other state before (temporarily) managing the patient's care there. I already do this before contacts using the telephone only.

·        Number of Patients/hours per week devoted to telemedicine?

The word "hours" in this context implies psychotherapy to me. I plan to do neither psychotherapy nor initial evaluation via telemedicine. I intend to examine every patient at least once in the office before considering telemedicine visits.

I want to use this technology for as many patients as want to use it.

·        Ages & types of conditions/treatment for telemedicine?

I only treat adults and have opted out of Medicare, but I see no justification for discriminating on the basis of age. I treat patients with most psychiatric diagnoses. I see no reason why diagnosis should determine whether to apply this technology. I hope someone will comment on whether there might be certain types of cases that should not be managed via Skype.

·        Previous telemedicine experience?

Lots of experience on the phone, which emphasizes the fact that insurers, and maybe the courts, see this as a limiting technology when in fact it is less limiting than the telephone if only because you can see the patient. The differences of course are not addressed in the question: I have never charged a fee for telephone contacts, and telemedicine contacts would replace at least some in person contacts.

·        Equipment used?   Who supplies the telemedicine equipment?

Another vague question. Both physician and patient need a computer, a video camera, and an Internet connection. Funny that they never ask this question if you propose telephone contact. Who supplies that cell phone? Who supplies that battery? Who supplies those telephone poles? Let me propose an office visit: Wait, who supplies the car? the furniture? the roof? the light bulbs?

·        Is informed consent signed?

How does one sign consent? OK, this refers to yet another form. Actually, I am putting together an agreement which will include informed consent. But should I not have a separate consent form or agreement for telephone contact or office visit as well?

Phone: "I understand that doctor and patient may not be able to see each other when talking on the phone and that this leads to risk of misidentification or that each party may be unable to see the other party making rude gestures during conversation."

"I understand that if I talk to my psychiatrist on the telephone she may not be able to see holding a knife to my wrist."

Office: "I understand that meeting the physician in the office entails risk of unwanted touching that cannot happen via telephone or Skype. I understand that by traveling to the doctor's office I expose myself to risk of traffic accident, being mugged or murdered, or having my boss, who is also a patient there, see me walking into the waiting room."

  Can patients decline treatment?

No! Absolutely not! All patients must submit to treatment on penalty of death!

Seriously, maybe they mean to ask whether the patient can choose to conduct visits in person. Of course they can. By telephone? Not with me.

·        Will a psychiatrist or mental health professional be available if immediate attention is needed by the patient?

This is my favorite. Where do I start?

I try to picture a patient in my office for an appointment scheduled two weeks ago needing "immediate attention." I'm a doctor. It is not my job to give people attention. I diagnose and treat mental disorders. What are they talking about here? I would be available. If a patient seems at risk of suicide or some emergent medical problem we call 911 or send them to an emergency room. Doesn't matter whether the patient is in my office, at home, or on vacation in San Francisco.

This question seems to suggest that this mythical patient with this mythical need for immediate attention should have a psychiatrist or "mental health professional" (whatever that is) assigned to be present with the patient when the telemedicine contact is initiated. Why? And what exactly is this person supposed to do? Emergency psychotherapy? Hand them a tissue? Most patients probably wait weeks for an appointment with a psychiatrist. One local ER here has probably not enjoyed a visit from an on-call psychiatrist in 20 years. And if the patient is at risk of violence they need immediate attention from a SWAT team, not a mental health professional.

·        Will you be obtaining the patients medical history?

What perplexes me about this question is that it could refer to almost any element in the initial evaluation, assuming that is what they refer to here. Why not ask about the psychiatric history, family history, developmental history?

If so, how will you obtain the medical history?

I like to start with general anesthesia. Then I make a 3 inch incision over the right supra-numerary fossa and dissect through the soft tissue to the hard tissue. If it's even there.

Seriously -- but not very seriously -- I ask.

·        Is there a backup plan in the event of an equipment failure?

Absolutely. If the furnace goes out, I put on warm clothes. If the car breaks down, they take a cab. Or reschedule for later in the week. Hay, that just happened today. With no telemedicine involved. If the cell phone battery goes dead, we recharge it.

Oh, you mean if the computer, or the video cam, or the Internet connection fails. This really is not rocket science. You use a different computer, make do with the telephone, reschedule, or play Neanderthal and schedule an office visit. Does this really need a plan? (Maybe if you left your common sense under the pillow.)

That's all for the underwriter's questions, but here are a few more thoughts.

Using telemedicine a patient cannot physically assault a physician, office staff or another patient. Neither can they transmit infectious diseases to other patients over the Web, like they can in a waiting room.

Telemedicine markedly increases privacy for obvious reasons, some of which I hint at above. Vulnerability to hacking is a real risk, but we must weigh it against risks associated with office visits.

Skype is arguably superior to telephone but does not require waiting for business hours or availability of an office. It can also increase continuity since better-than-telephone contacts can occur when either or both parties are traveling or unable to reach the office due to illness, disaster, transportation or weather problems.

True, I will not be able to smell alcohol on the breath of an intoxicated patient, but neither will that patient kill someone while driving to my office under the influence.

Nothing in medicine is perfect, but, used sensibly, this technology offers clear advantages and deserves a place in the armamentarium of some if not all physicians, that is despite one undeniable disadvantage: My patients won't be able to enjoy petting my dog, which is why I think most pay to see me anyway.

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