Evolution Of The Physician-Patient Relationship In The Era Of Telemedicine – Coronavirus (COVID-19) – United States – Mondaq News Alerts

Schwabe Williamson & Wyatt

11 January 2021

Schwabe Williamson & Wyatt

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The COVID-19 pandemic has shifted a large part of our lives tovirtual platformsand the delivery of healthcare is nodifferent. As it has become difficult or inadvisable to arrangeface-to-face visits between physicians and their patients, scoresof physicians have flocked to the use of telemedicine. Even beforethe COVID-19 pandemic, telemedicine had been hailed as thehealthcare delivery model of the future, but many physicians werehesitant to utilize telemedicine for a variety of reasons,including concerns about privacy, confidentiality, quality of care,and the technological capabilities (or lack thereof) of theprovider and patient. While these issues still exist, theexigencies of the COVID-19 pandemic have driven physicians to usetelemedicine to avoid unacceptable interruptions in patient care.Knowing this, the Centers for Medicare and Medicaid Services (CMS)adopted temporary changes to reduce privacy and confidentialityconcerns related to telemedicine, allowing for the use of moreeasily accessible, but less secure, technology platforms.

While stopgap measures have been taken to alleviate someimpediments to the use of telemedicine during the pandemic at thefederal level, there are still unaddressed issues physicians shouldbe aware of when utilizing telemedicine on a wide-scale basis.Among them are the ethical obligations that the physician-patientrelationship imposes on physicians. Physicians must be aware thatthese ethical obligations apply equally to care delivered viatelemedicineand that the Oregon Medical Board (OMB) has notrelaxed these ethical obligations during the COVID-19 pandemic.

Evaluating these ethical obligations in the context oftelemedicine can be difficult because existing laws were notwritten with the challenges of telemedicine in mind. The OMBaddresses telemedicine through a generalized, vague Statement ofPhilosophy, which makes it clear that physicians are held to thesame standard of care when treating a patient via telemedicine asin the traditional face-to-face setting. If a physician fails tomeet the physician's ethical obligations, he or she may be inviolation of the Oregon Medical Practices Act (OMPA), whichregulates the practice of medicine, podiatry, and acupuncture. TheOMPA is silent on the specific ethical obligations in the contextof telemedicine, beyond stating that physicians in Oregon are heldto 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 thecontext of telemedicine more thoroughly than the OMB or OMPA.However, it remains vague, potentially leaving physicians with morequestions than answers. The AMA Code states that aphysician's fundamental ethical responsibilities to patientsdo not change in the context of care delivered via telemedicine. Italso elaborates ethical obligations imposed on physicians whendelivering care via telemedicine, such as being proficient in theuse of the telemedicine technology and recognizing the limitationsof the particular telemedicine technology.

Given this lack of specificity, physicians are well advised toproceed with caution by over-disclosing when delivering care viatelemedicine. More specifically, physicians using telemedicineduringand afterthe COVID-19 pandemic should discloseand document, at a minimum, the following:

Moreover, physicians should be aware of the following whensetting up and utilizing telemedicine services for theirpatients:

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

Originally Published by Oregon Health CareAssociation

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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