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Protect Yourself During Virtual Appointments: What You Need to Know

January 29, 2021

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In-person medical appointments are difficult to schedule these days. Due to the pandemic, patients across the country must have consultations and appointments with their doctors and other medical providers via the Internet. Although this can be convenient, practitioners must still take precautions to avoid a medical malpractice lawsuit.

While you may be able to see your patients as you discuss his or her health issue, you may find difficulty in gauging a diagnosis because you are not able to do a manual examination. Certain areas of medicine, such as oncology, cardiology, and other chronic illnesses are difficult to treat and prescribe medication virtually and can open you up to a misdiagnosis, incorrect prescription, or a failure to diagnose.

For that reason, practitioners must have a policy in place surrounding virtual medical appointments to prevent liability issues. The following are some policies you may want to implement in your practice.

Determine Which Conditions You Will Treat Virtually

Before you begin seeing patients virtually, decide whether or not you will handle all medical anomalies within your specialty during virtual appointments. You may not feel safe providing medical care to a patient if you cannot palpitate an area to assess for cancer, for example. Have a plan for in-person visits for certain medical issues.

Require a Face-to-Face Physical Exam

Although virtual medical visits are helpful during the pandemic, certain specialties or specific symptoms may require an initial physical exam in person before you move forward with treatment. Although you will have a medical history of the patient prior to a virtual appointment, you should consider a quick exam based on his or her symptoms.

You should reconsider prescribing medication virtually until you have met the patient, reviewed his or her medical history, and asked important questions about the medical issue at hand.

Phone calls to the patient or answers to a medical survey do not provide enough information for you to provide treatment without the possibility of something going wrong. In-person appointments are still possible, even if you have to meet the patient outdoors.

Maintain Impeccable Medical Records

As you treat patients virtually, make sure your records and notes show you have an established relationship with the patient. You should note your accessibility to the patient during diagnosis and keep a record of all symptoms he or she experienced.

You also must keep a record of the patient's medical history with your records to show you had the most accurate information regarding your patient's health.

Only See Patients with an Established History

If you are onboarding new patients during the pandemic, you may want to require them to schedule an initial in-person appointment. You will develop an idea as to the issue the patient is facing and may feel more confident when prescribing medication or providing virtual treatment going forward.

Establish Informed Consent

When you treat a patient virtually, you must be crystal clear regarding informed consent. The patient must know all possible outcomes and risks of the treatment plan. Your informed consent procedures should include information of all providers involved in his or her treatment, such as names, credentials, the names of the facilities necessary to provide treatment, and so on.

One of the most important issues to consider is communication with your patient. Make sure you have clear consent from your patients. Do not rely on the words of others, whether they be staff members or the family of the patient.

Along with shortages in providers, the pandemic has increased the need for virtual medical appointments. However, you must take caution to avoid any liability issues. If you have any questions about medical malpractice or liability, please contact Spiga and Associates.

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You see him or her on your television, in your professional journals, and on your home page . . . the “Poster Child.” The Physician existing on the fringe of the profession, who gets arrested for overwriting prescriptions for Schedule II substances . Their example is easy to dismiss. The average M.D. engaged in legitimate practice seemingly has nothing to worry about. This fate befalls the slacker, the greedy, the foolhardy. Don't be so sure, any M.D. who prescribes Schedule II substances as a regular part of their practice is only one adverse patient outcome away from California Medical Board and possibly criminal investigation. For example, Surgeons and Physicians practicing in Emergency Medicine, Oncology, and Pain Management, routinely write hundreds, if not thousands of prescriptions for Schedule II substances. There is no way for a Physician to control the patient’s use of controlled substances, yet a dangerous and influential myth is being propagated that a physician is a fortune teller and can predict which patients will misuse the substances provided. Further complicating the issue is the difficult ethical landscape navigated by Physicians dealing with patients presenting legitimate symptoms demanding treatment with Schedule II and III substances, but who are nevertheless, drug dependent. Long term pain management patients are at particular risk of overdose due to their high tolerances leading to increasing dosages and the difficulty in weaning them off the substances they have become dependent upon. Should a patient die or suffer an adverse outcome that is somehow connected to a prescription for a schedule II substance, a criminal and California Medical Board investigation is sure to follow. Oftentimes the investigation will be spearheaded by investigators for the California Department of Consumer Affairs working in conjunction with local law enforcement but who also work on behalf of the Medical Board of California. These investigators are sworn peace officers and have the power to arrest and working with the Attorney General or local District Attorney also have the ability to bring criminal charges against a Physician. These investigations start out invisibly with scrutiny of CURES II reports detailing a Physician’s prescription history. All patients receiving scheduled substances will be given particular attention. Soon after, the physician will receive a request for patient records, followed by a letter of investigation from a California Department of Consumer Affairs Investigator indicating that a complaint has been made and requesting an interview. They do not inform the Physician of his or her right to counsel or whether the Physician even has the right to refuse the interview. Nor do they inform him or her of their right to review the complaint. Believe it or not, one of the common mistakes Physicians make in dealing with these investigations is not taking it seriously. They will delay responding or not respond at all. Often Physicians confident in their prescribing practices will have a false sense of confidence going in to such an interview and will wing it without consulting consul. Those Physicians learn the error of that approach through hard experience. If you are facing such an inquiry. Take it very seriously, Your medical license is your most important asset. If you have an adverse patient outcome that has come to the attention of your Hospital Administration, The Medical Board of California or local law enforcement, call Spiga and Associates immediately. Because of our 25 years of experience in both Criminal and Administrative defense we are uniquely qualified to defend you and your medical license.