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Telehealth and home health risk management
By Elizabeth E. Hogue, Esq.
[Editor’s note: This is the first of a two-part LegalEase column that addresses home health agency risk management concerns related to telehealth. This column presents information on liability related to negligence and offers tips on how home health agency managers can protect their agencies. (For more information about telehealth in home care, see Hospital Home Health, March 2002, p. 25.)
Next month’s column will discuss how agencies can protect themselves from charges of abandonment.]
Home care providers are beginning to seriously explore the use of telehealth devices in home health care.
As providers examine exciting new possibilities in telehealth, they must remain cognizant of possible risks associated with the use of these devices. They must also take practical steps to avoid potential liabilities associated with the advent of telehomecare.
There are two potential types of liability that providers must avoid in the use of telehealth: liability for negligence and liability for abandonment. Agencies run the risk of liability for negligence whenever they provide services to patients.
To prove these types of liability, patients must show all of the following:
1. Providers owed patients a duty of reasonable care.
2. Providers breached their duty of reasonable care to patients. Agencies can breach their duties to patients in one of two ways:
3. Providers’ breach(es) of duty caused injury or damage to patients. The best way to define "cause" is in terms of "but for." But for the providers’ breach of duty, patients would not have been injured or damaged. To prove injury or damage, patients must show physical injury or damage, or extreme and outrageous conduct on the part of providers. Extreme and outrageous conduct is behavior that is barbaric, shocking, cannot be tolerated in civilized society, and causes one to gasp.
Patients must prove all three of those requirements. If they fail to prove even one of them, providers will defeat patients’ lawsuits based on negligence.
The use of telehealth devices includes the potential for instances of negligence in addition to potential liabilities associated with hands-on or in-person services. Equipment malfunction or failures are an example of types of negligence specifically associated with the use of telehealth.
Liability also may result when practitioners, primary caregivers and/or patients do not thoroughly understand how to use equipment involved in the provision of telehealth services.
Physicians have observed, for example, that the use of telehealth devices to view and prescribe treatments for patients with wounds is limited severely by staff members, primary caregivers, and/or patients who really do not understand how to use telehealth equipment.
Most agencies are extremely concerned about maintenance of telehealth devices. Stories about persistent bugs in devices, systems that crash or are completely inoperative for days at a time, and unresponsive vendors are alive and well within the industry.
Negotiate good contracts
Managers must gain as much control as possible over the timing and quality of vendors’ responses when staff members report problems. Accountability by both agency and vendor personnel is absolutely crucial to the avoidance of potential liability.
Specifically, the process for reporting problems must be described carefully in written contracts or agreements between agencies and telehealth vendors.
The following questions must be addressed with as much detail as possible in such contracts:
Likewise, the obligations of vendors with regard to problems also should be delineated. Specifically, contracts should establish detailed time frames for both responses from vendors and resolution of problems.
Reductions in monthly maintenance fees may be appropriate when vendors’ failure to meet delineated standards for problem resolution is documented.
It may be appropriate to establish a method to triage problems in contracts. In other words, certain types of problems deserve more immediate attention than others. Inoperative systems/ devices will receive the highest priority in most instances. But other minor difficulties may withstand delays.
As part of the process of negotiating contracts, agencies and vendors should engage in detailed discussions about how equipment malfunctions and failures will be handled.
These discussions should be reduced to writing. When vendors have developed standard contracts and do not wish to deviate from them, agreements about how to handle problems with hardware may be detailed in exhibits to standard agreements. In addition, when agency staff members, patients’ primary caregivers, and/ or patients do not adequately understand how to operate telehealth devices, liability for negligence may result.
Again, these issues may be addressed in some detail in written agreements between agencies and vendors. Training of staff members, primary caregivers, and/or patients must be carefully described in contracts.
Provide a lot of information about training
The more details that are included in agreements regarding training, the greater protection from potential risk for agencies.
Consequently, agreements, at a minimum, should spell out answers to the following questions:
Again, it is crucial for representatives of vendors and agencies to spend time before agreements are signed to be able to include detailed answers to these questions in written agreements.
If agencies and vendors fail to address these crucial issues of equipment function and training in contracts, their risks of liability for negligence due to injury or damage to patients is likely to be enhanced.
Both agencies and vendors will clearly benefit from careful consideration of these issues before telehealth devices are used in the field.
[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail: firstname.lastname@example.org.]
[Editor’s note: This is a periodic column that will address specific questions related to the Health Insurance Portability and Accountability Act (HIPAA) implementation. If you have questions, please send them to Sheryl Jackson, Hospital Home Health, American Health Consultants, P.O. Box 740056, Atlanta, GA 30374. Fax: (404) 262-5447. E-mail: email@example.com.]