Public Health Law Map - Beta 5 - Medical and Public Health Law Site

If there is a physician–patient relationship between the remote consultant and the
patient, then the consultant has certain duties to the patient. Consultants will be
liable for negligent diagnosis or advice to the patient. Since they must depend to
some extent on information from and observations by the local practitioner, they
should be concerned with whether the local practitioner is competent and reliable.
The more difficult questions involve the extent of the relationship. If the local
contact is the patient’s primary physician, and the consultation is for a specific
purpose, then the consultant’s legal duties will be limited to the correctness of his
or her own advice. To establish this in court, the consultant will need to keep a
good record of the consultation and should draft a specific consultation letter that is
provided to both the patient and the local practitioner. The consultant should
preserve any medical records that he or she is provided as part of the consultation.
These can be imaged and stored electronically with the record of the consultation.
The consultant should have the patient execute an informed consent to the
consultation. Ideally this would be done prior to the consultation and could be done
electronically. This should include a specific release for the medical information
that the consultant needs to review, and a clear statement of the purpose of the
consultation and limitations on the relationship between the patient and the
consultant. Patients should be informed of whether they may contact the consultant
directly or whether all contact must be through the local practitioner. Patients must
also be informed that they do not have an ongoing relationship with the consultant,
if this is the case. If the local practitioner is not a physician, then the consent should
specifically identify the physician who is responsible for supervising the local
practitioner, how the patient can get in touch with the physician, and that this
physician, not the consultant, is responsible for the patient’s ongoing care. It is
critical that patients always know who is responsible for their care, otherwise the
consultant could be held to have abandoned the patient.
Legally, the greatest risks occur when the remote consultant is the only physician
involved in the patient’s care. The worst case is when the patient contacts a remote
physician without any local medical practitioner to mediate the consultation and
without having seen the practitioner in person. In these situations the courts are
most likely to assume that the telemedicine physician has an unlimited physician–
patient relationship with all the attendant legal duties of follow-up and general
evaluation of the patient’s condition. Physicians who advise patients in these
situations should be very careful to collect as much medical information as possible
about the patient, and to record the consultations. The informed consent for the
consultation should address the special problems of remote consultation and the
reasons that it is being used in the specific patient’s case. These will be very
important if a court is called on to evaluates the consultation. Providing medical
advice to a sick person in a remote location who has no access to any other medical
care providers is a powerful argument for a court to find that consultation serves an
important societal function and deserves legal protection. Conversely, running up
big charges as Dr. Internet to the confused and gullible will be less sympathetic to
the jury if something goes wrong.
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