Virtual Curbside Consult App Considerations

The ease of use and casual nature of virtual curbside consult apps may be appealing, but fundamental considerations still apply. In determining whether telehealth apps might be beneficial to your practice, it’s important to identify and consider a few potential pitfalls which could include appropriate licensure by the specialist and incurring uninsured liability exposure(s) for your practice.

It could be that after a thorough and detailed analysis, your practice determines that the potential benefits of using these apps, within certain parameters, outweigh the potential risks. But on the path to that conclusion, some questions you will want to consider include:

This is just informal curbside consulting, not patient care, and therefore not telehealth, correct?

Virtual curbside consult apps may not be described or perceived as patient care or telehealth because the specialist does not personally interact with the patient whose care is at issue. To date, we have not located individual state medical board position statements confirming this view. Admittedly, this is a rapidly developing area, and position statements, regulatory investigations and potential enforcement actions of state medical boards, and the scope of exposure in medical professional liability actions remains to be seen. As a result, Curi’s current risk advice is that the consulting done via these apps should be considered telehealth by the providers using such platforms.

The app allows the option of inserting a transcript of the consult in my practice’s medical record… should I?

Before engaging with a virtual curbside consult app service, you need to understand how and where the transcripts of these interactions will be stored, how long they are retained, and how they can be retrieved after the fact. Whether you incorporate the notes into your practice’s EMR will ultimately be your clinical decision and could be subject to many factors, and there may not truly be a “correct” answer. If the care at issue becomes the subject of medical malpractice litigation and you cannot produce a copy of the transcript, the spoliation doctrine could apply (and the jury may be instructed to presume that the missing notes contain information harmful to your case). If you include these transcripts in your EMR and you frequently use one of these services, plaintiffs’ attorneys might suggest you lack appropriate competence to treat the conditions that present to you and/or are reluctant to formally refer patients to maximize fee generation. If you want to discuss this issue in more detail, please feel free to contact our Risk Solutions team at risk.oncall@curi.com.

I’m a primary care physician using one of these services to consult specialists. How could this impact me in the event I’m sued for malpractice as a result of the care at issue in one of these consults?

Virtual curbside consult apps may provide access to specialists who are not licensed in or physically located in the state in which you and your patient are located. Generally speaking, a physician must be licensed in the state in which the patient is located at the time of treatment regardless of whether the encounter is virtual. If you are in a state that has a relatively stable medical malpractice climate (e.g., North Carolina) but the specialist is located in a nearby state or jurisdiction that has a more volatile climate (e.g., Washington, D.C.), it is possible that you and your practice could be sued for medical malpractice in a court within the specialist’s state despite the fact that you have no physical office presence there.

Potentially being sued in a different jurisdiction is one possible impact but may not be the only one. As mentioned in the answer above, a plaintiff’s attorney might argue that a doctor’s frequent use of this type of service implies a lack of competence or might look to exploit any discrepancies between the consultant’s advice and the advice given to the patient. If you want to discuss this issue in more detail, please feel free to contact our Claims team at claims.report@curi.com.

Is there any additional exposure I could be taking on as a primary care physician who wants to use these apps for consults?

You need to read and potentially negotiate the contractual terms (and/or terms of service) that apply to your use of a virtual consult telehealth app before you use such an app. You may need outside counsel to assist you in understanding what additional risks you may be taking on. For example, the terms of service may contain broad unilateral indemnification provisions that require physician users of the platform to indemnify the app (and the app’s agents, such as the specialists consulted) in the event of any liability, whether related to medical malpractice of the specialist, security of data transmitted by the app, or anything else. You may not have insurance coverage for these additional liabilities. If the specialist you consulted gets sued in a medical malpractice case for the care at issue and the app’s owner and/or specialist demand(s) that you indemnify the specialist, Curi’s medical professional liability insurance policy would not apply to the specialist’s exposure. Curi’s policy excludes coverage for “[l]iabilities of others assumed by the Insured under any contract or agreement.” If you want to discuss this issue in more detail, please feel free to contact our Underwriting team at 800-662-7917.

I’m a specialist considering whether to provide consults via virtual consult apps. I don’t need to be licensed in other states where the primary care provider and patient are located, do I?

Generally speaking, a physician must be licensed in the state in which the patient is located in at the time of treatment regardless of whether the encounter is virtual. If you are physically located in your home state where you are licensed, and you are providing consults to physicians and patients who are in other states in which you are not licensed, be careful as: 1) you’ll want to ensure you are not violating either state’s medical board’s expectations and regulations; and 2) your medical professional liability insurance policy will not provide coverage if you get sued for the care at issue. Curi’s medical professional liability policy excludes coverage for “the rendering of or failure to render Professional Services occurring in any location where the Insured was not licensed to practice medicine and where such a license was required.” If you were subjected to a medical board complaint or investigation relating to your consult, Curi’s Broad Regulatory Protection Endorsement would likely provide coverage for responding to the board. If you want to discuss this issue in more detail, please feel free to contact our Underwriting team at 800-662-7917.

Are there any other questions I should be asking?

As always, you should ensure that you have secured any necessary Business Associate Agreements before sharing PHI with any external party. You will need to consider what you will disclose to your patients about use of these types of apps being used in real-time clinical care, and whether informed consent is indicated in advance. Lastly, as with all arrangements that implicate actual or potential patient referrals, practices should make sure to analyze their relationships with any companies providing virtual consult services – whether the services are paid for by the practice directly or by a third party on the practice’s behalf or are provided free of charge – for compliance with state and federal fraud and abuse laws, including the Anti-Kickback Statute and the Stark law.

Disclaimer: Curi is pleased to provide this information that may be generally informative for medical practices and hopes but cannot guarantee that it might reduce risk(s) associated with using virtual curbside consult services. Provision of this information does not constitute: endorsement of the use of virtual curbside consult services or of any particular app or provider of such services; legal advice; or formal policy coverage determination(s). If legal advice is needed for decision-making or questions, it should be obtained from an attorney retained by you or your practice. Given the rapidly changing technological, clinical, and legal landscape, it is imperative that physicians keep current with applicable laws in jurisdiction(s) in which they practice and in which their patients reside.