On April 3, 2020, Governor Hogan signed new telehealth bills into law that expand the definition and use of telehealth. These laws went into effect immediately. As a result, Maryland’s formal definition of telehealth now includes asynchronous telehealth interactions. “Asynchronous telehealth interaction” means an exchange of information between a patient and a healthcare practitioner that does not occur in real time, including the secure collection and transmission of a patient’s medical information, clinical data, clinical images, laboratory results, and self-reported medical history. See MD Code, Health Occupations, § 1-1001(b).
Asynchronous telehealth communications allow patients and providers to interact on their own timelines. One can imagine, however, the potential pitfalls for healthcare providers utilizing this mode of communication: Has the provider met privacy requirements? Has the provider responded in a timely fashion to an asynchronous communication from a patient? When does the circumstance require follow-up by the provider to an asynchronous communication before making recommendations? Will juries defer to a provider’s impression of a patient’s situation when it occurs virtually?
Healthcare providers utilizing asynchronous telehealth interactions must be vigilant — a telehealth practitioner is held to the same standards of care applicable to the in-person healthcare setting. Providers should consult with their insurance carrier to ensure professional liability coverage for these services.
We are entering a brave new world in the provision of medical care. We stress caution while we collectively navigate these uncharted waters.
For more information regarding updates to the ever-evolving world of telehealth, please read Rachel E. Brown and John T. Sly’s article published in The Defense Line, “Telemedicine: Welcome to the Future”.
During this crisis, Waranch & Brown has been preparing for the defense of COVID-19 cases on behalf of our clients. We are collecting and updating guidelines and protocols and assembling a first-rate team of medical experts, ethicists, epidemiologists and virologists. And we are studying the research and relevant materials to take full advantage of any immunities or good faith protection for our healthcare providers.
Waranch & Brown has been on the forefront of the defense of healthcare providers for over 20 years. Through COVID-19, and all its repercussions, we will stay by your side.
We hope you find this helpful. If we can assist or advise in any way, please feel free to contact our COVID-19 team leader John T. Sly, Esq., or any member of the firm.