Evolution of the Physician-Patient Relationship in the Era of Telemedicine

November 12, 2020

This is a guest article by Thomas Allen and Scott Eads, attorneys at Schwabe, Williamson & Wyatt, an OHCA business partner.

The COVID-19 pandemic has shifted a large part of our lives to virtual platforms—and the delivery of healthcare is no different. As it has become difficult or inadvisable to arrange face-to-face visits between physicians and their patients, scores of physicians have flocked to the use of telemedicine. Even before the COVID-19 pandemic, telemedicine had been hailed as the healthcare delivery model of the future, but many physicians were hesitant to utilize telemedicine for a variety of reasons, including concerns about privacy, confidentiality, quality of care, and the technological capabilities (or lack thereof) of the provider and patient. While these issues still exist, the exigencies of the COVID-19 pandemic have driven physicians to use telemedicine to avoid unacceptable interruptions in patient care. Knowing this, the Centers for Medicare and Medicaid Services (CMS) adopted temporary changes to reduce privacy and confidentiality concerns related to telemedicine, allowing for the use of more easily accessible, but less secure, technology platforms.

While stopgap measures have been taken to alleviate some impediments to the use of telemedicine during the pandemic at the federal level, there are still unaddressed issues physicians should be aware of when utilizing telemedicine on a wide-scale basis. Among them are the ethical obligations that the physician-patient relationship imposes on physicians. Physicians must be aware that these ethical obligations apply equally to care delivered via telemedicine—and that the Oregon Medical Board (OMB) has not relaxed these ethical obligations during the COVID-19 pandemic.

Evaluating these ethical obligations in the context of telemedicine can be difficult because existing laws were not written with the challenges of telemedicine in mind. The OMB addresses telemedicine through a generalized, vague Statement of Philosophy, which makes it clear that physicians are held to the same standard of care when treating a patient via telemedicine as in the traditional face-to-face setting. If a physician fails to meet the physician’s ethical obligations, he or she may be in violation of the Oregon Medical Practices Act (OMPA), which regulates the practice of medicine, podiatry, and acupuncture. The OMPA is silent on the specific ethical obligations in the context of telemedicine, beyond stating that physicians in Oregon are held to recognized standards of ethics of the medical profession.

The Code of Medical Ethics of the American Medical Association (AMA) Code addresses the physician-patient relationship in the context of telemedicine more thoroughly than the OMB or OMPA. However, it remains vague, potentially leaving physicians with more questions than answers. The AMA Code states that a physician’s fundamental ethical responsibilities to patients do not change in the context of care delivered via telemedicine. It also elaborates ethical obligations imposed on physicians when delivering care via telemedicine, such as being proficient in the use of the telemedicine technology and recognizing the limitations of the particular telemedicine technology.

Given this lack of specificity, physicians are well advised to proceed with caution by over-disclosing when delivering care via telemedicine. More specifically, physicians using telemedicine during—and after—the COVID-19 pandemic should disclose and document, at a minimum, the following:

  • The risks and limitations of the telemedicine services provided.
  • How to arrange for follow-up, in-person care.
  • That patients should inform their other healthcare providers about the telemedicine interaction.

Moreover, physicians should be aware of the following when setting up and utilizing telemedicine services for their patients:

  • State and federal regulations regarding the establishment of a physician-patient relationship via telemedicine versus face-to-face visits.
  • The technology being used to deliver care via telemedicine and steps taken to ensure that patients are proficient in the use of the given technology.
  • Safeguards implemented to establish the patient’s identity.
  • A secure, confidential platform used to deliver telemedicine services.
  • If using a telemedicine platform only temporarily approved by CMS due to the COVID-19 pandemic (e.g., FaceTime and Skype), steps taken to ensure that the patient understands that this platform may not be available for use with future visits.

This is not an exhaustive list of what physicians are required to do in order to meet their ethical obligations when delivering care via telemedicine. The exact obligations will differ based on the practice specialty and the healthcare services being delivered. It is unlikely that the OMB or other regulatory authorities will penalize physicians for exceeding the scope of their telemedicine practice during the COVID-19 pandemic. However, it is important for physicians who intend to utilize telemedicine past the COVID-19 pandemic to develop a telemedicine practice that ensures they can meet their ethical obligations imposed by the physician-patient relationship, as well as comply with requirements related to privacy and confidentiality.