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  » Telemedicine  »   Risk Management in Home Telehealth

By Elizabeth E. Hogue Esq., January/February 2005

Permissions: This paper is reprinted from the Telehealth Practice Report, v9(6):1,9-10, 2005, with permission from the publisher, Civic Research Institute.

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 tele-homecare.

There are two potential types of liability that providers must avoid in the use of telehealth: (1) liability for negligence and (2) liability for abandonment.

Liability for Negligence

Agencies run the risk of liability for negligence whenever they provide services to patients. In order to prove this type of liability, patients must prove 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 either of the following ways: 1) Agency staff members can do something that they should not do; or 2) Practitioners can fail to do something that they should have done.
  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. In order 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 these 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 may also 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 severely limited 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.

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 carefully described 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:

  1. Who should receive reports of problems with equipment at the agency?
  2. When is it appropriate to make reports of malfunctioning equipment to vendors?
  3. What are appropriate time frames for making such reports?
  4. In what form should reports to vendors be made?
  5. How and to whom should reports to vendors be communicated?

Likewise, the obligations of vendors with regard to problems should also 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 are documented.

It may be appropriate to establish a method to 'triage' problems in contracts. That is, 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.

Likewise, when agency staff members, patients' primary caregivers, and/or patients themselves 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. The more detail that is included in agreements regarding training, the greater protection from potential risk for agencies.

Consequently, agreements should spell out at a minimum answers to the following questions:

  1. Who will provide training on behalf of the vendor?
  2. What training will the vendor provide?
  3. What is the specific schedule for training conducted by vendor personnel?
  4. Who will monitor training provided by vendors on behalf of the agency to help ensure effectiveness?
  5. What mechanisms such as post-tests will be used to evaluate effectiveness of training provided by vendors?
  6. What recourse do agencies have if it appears that training provided by vendors is inadequate or ineffective?
  7. What process will be followed when agencies document deficits in knowledge after initial training has been completed successfully?

Again, it is crucial for representatives of vendors and agencies to spend time before agreements are signed in order 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 risk 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.

Liability for Abandonment

Home care providers have always been very sensitive to the possibility of liability for abandonment of patients. Providers' cautiousness with regard to this issue is certainly justified and should be reflected in providers' use of telehealth devices.

First, it is important to be sure that providers and vendors understand what abandonment is so that risks associated with telehealth can be appropriately addressed. Both providers and vendors may, for example, be operating under the misconception that whenever patients go without services, there is almost automatic liability for abandonment.

On the contrary, patients must show that all of the following requirements are met in order to prove liability for abandonment:

  1. Providers unilaterally terminated the provider-patient relationship;
  2. Without reasonable notice; and
  3. When further attention is needed.

A key question in the application of this theory of liability to instances of equipment failure/malfunction will be whether the failure/malfunction constitutes termination of relationships with patients. To the extent that agencies are precluded from providing services to patients by problems with equipment, they may argue that the failure/malfunction amounted to termination of the relationship.

An example of a situation in which agency personnel may be precluded from providing services in the event of problems with telehealth equipment may occur when agencies are monitoring the condition of patients in remote locations and cannot provide services in person to substitute for monitoring using telehealth equipment.

Agencies, on the other hand, may attempt to defeat claims of abandonment under these circumstances on the basis that the relationship with the patient was not terminated, but only disrupted on a temporary basis. Temporary disruptions of services may occur even when telehealth devices are not used, in the event of natural disasters, for example.

Patients may also claim that reasonable notice was not given when devices fail unexpectedly. Injuries or damage to patients as a result of inability to provide services may support patients' claims that further attention was needed. As with negligence, patients must show either physical injury or damage or extreme and outrageous conduct on the part of providers.

There are, however, practical strategies that agencies can use to manage risks of liability for abandonment in the event of equipment malfunctions and/or failure. These strategies include the following:

  • Agencies must evaluate on admission whether patients can care for themselves in the event of equipment malfunction or failure. If patients have the capability to care for themselves, agencies must discuss in detail the steps that patients should take when equipment is not working properly. For example, if patients' vital signs are being monitored regularly via telehealth, patients should be taught alternative ways to monitor them. They should also be taught how to report results to agency personnel and what constitutes abnormal results. Appropriate actions to take in the event of abnormal results must also be discussed in detail with patients. These discussions must be documented. Successful return demonstrations should also be documented when appropriate.
  • When patients cannot care for themselves in the event of problems with telehealth equipment, agencies should be certain that there is at least one primary caregiver, either paid or voluntary, who can assist patients. Primary caregivers should receive appropriate training about what to do under these circumstances. Training should be documented as described above.
  • When patients cannot care for themselves in the event of problems with telehealth equipment, agencies should be certain that there is at least one primary caregiver, either paid or voluntary, who can assist patients. Primary caregivers should receive appropriate training about what to do under these circumstances. Training should be documented as described above.
  • Agency staff members should continuously monitor the ability of patients to participate in telehealth. Patients' and/or primary caregivers' ability to do so may change over time. Patients who were active, appropriate participants upon admission may lose the ability to benefit from telehealth services as their conditions progress or deteriorate. When patients' ability to benefit has been compromised, agency personnel must take action to help ensure alternate sources or means of care.
  • Agencies may also wish to confirm the obligations of patients/primary caregivers in the event of equipment malfunctions/failures in writing via language in admission agreements or letters documenting these responsibilities. Both patients and primary caregivers may be asked to sign these documents that confirm their understanding of their responsibilities.

Conclusion

The need for enhanced use of telehealth in the home care industry is becoming increasingly clear. Unfortunately, the development of workable, reliable systems may lag behind the need in the industry. In addition, it may be difficult for home care managers who may not be computer experts to effectively evaluate and utilize systems or hold vendors accountable for problems. Liability for agencies and vendors may result. Nonetheless, the use of telehealth equipment in the home care industry is becoming a necessity. Managers must be persistent in their use of available systems and practical strategies to limit risks in order to achieve ultimate goals.

About the author: Elizabeth E. Hogue, Esq. is an attorney in Burtonsville , Maryland .

Copyright © 1995-2005. Telemedicine Research Center , Portland , OR