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Online prescribing malpractice risk

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The Center for Telehealth & e-Health Law (CTEL) looked at telemedicine malpractice cases, and according to its 2009 report, some telemedicine providers did face claims of alleged negligence. Most of these cases involved physicians prescribing medications across state lines to patients the physicians had not previously examined. 

Let’s look at one such case, via Medpro: 

The doctor, in this case, received a sentence of nine months in county jail and a fine of more than $4,000 for practicing medicine in a patient’s home state without being licensed in that state. It began when a patient filled out an online questionnaire. The website forwarded their responses to a processing firm that sent them to the physician, who was subcontracting for an online pharmacy and prescribed an antidepressant to the patient.  

Shortly after filling the prescription, the patient committed suicide. 

The doctor, pharmacy, website, and patient were all located in different states. The court decided the doctor needed to have been licensed in the patient’s home state to prescribe medicine to someone living there, and the doctor pleaded no contest to the felony charge. 

How to protect yourself: 

Get to know your state’s laws. Before you do any online prescribing, look up state-specific information about online prescribing for each state where you’ll be issuing prescriptions. Go to the medical board for each state in question to find out whether they: 

  • Require doctors to have a pre-existing relationship with a patient to engage in online prescribing.
  • Require a face-to-face physical exam before online prescribing. Can the exam be performed using a telehealth medium, such as videoconferencing? 

Many states have requirements specific to telemedicine related to: 

  • Patient medical history 
  • Written documentation 
  • Follow-up care 
  • Emergency provisions 

Talk to the patient before prescribing. It’s not advisable to prescribe medication based only on the answers to an online questionnaire or survey. At no point did the doctor in the aforementioned example meet or communicate directly with the patient in question. 

As of 2011, 28 states explicitly prohibit physicians from prescribing medication solely based on information received through an online medical questionnaire. To help reduce your liability, take notes, and keep records in such a way that you can easily demonstrate the following: 

  • You’ve established an appropriate relationship with your patient.
  • You have been able to adequately assess the patient.
  • The patient has provided you with an accurate health history.