Meeting the standard of care is key, no matter the clinical setting
Choosing the appropriate approach to the delivery of care can be particularly challenging during the COVID-19 pandemic. Physicians continue to have questions about how best to deliver care that enhances the safety of both patient and healthcare provider. What, for example, are the main considerations for determining whether a virtual assessment, an in-person assessment, or a hybrid of the two is best for individual patients and their particular care needs?
In the early days of the pandemic, CMPA members contacted the Association with questions about virtual care alongside other pressing matters such as virus testing and the availability of personal protective equipment. The queries reflected the rapid uptake of virtual care, which transformed some clinical practices practically overnight following years of a more gradual shift. We heard from physicians with concerns about medical liability risks of providing virtual care, and whether physicians who provide virtual care are eligible for CMPA assistance in medico-legal cases.
Medical liability risk
The medical liability risk of providing virtual care has historically been low. In the five years between 2015 and 2019, the CMPA handled a total of 45 cases with issues related to the provision of virtual care—a small fraction of the 36,586 regulatory authority (College) and hospital complaints and civil legal actions during that time. However, this review predates the dramatic changes to virtual care of 2020. The resulting medico-legal impacts, if any, will be evident only in the years to come.
Peer experts retained in the historical cases were critical of the following aspects of care:
- lack of thoroughness of the physician’s clinical assessment and investigations, which resulted in deficiencies in clinical decision-making
- deviation from a clinical practice guideline or from a College or health authority policy
- lack of situational awareness, including lack of self-awareness of deficiencies in a physician’s knowledge and skills in managing a medical condition via virtual care
- communication issues between physician and patient, including failing to obtain informed consent or to inform the patient that in-person visits would later be needed
- lack of communication with other physicians involved in a patient’s care, including with the patient’s family physician
- breach of confidentiality (e.g. sending patient health information via unencrypted email)
- lack of or inadequate office policies and procedures (e.g. no confidentially policy for staff use of social media to interact with patients)
- deficient record keeping (i.e. minimal or no documentation of the encounter)
An overarching question arising in the medico-legal cases was whether the choice of a particular technology to facilitate the medical encounter was appropriate in the circumstances of the particular patient.
Evolution of virtual care
Virtual care includes care provided through telemedicine, without access to cameras, or may involve video conferencing and other internet-based tools that provide a virtual face-to-face meeting remotely. In most instances, virtual care will be an adjunct to a setting where patients can be assessed in person. In some cases, it may be appropriate to provide virtual care without an in-person visit.
Expectations of regulatory authorities
Virtual care is not a substitute for in-person assessments or clinical examinations, where required, or for attending the emergency department when needed for any urgent care. However, many Colleges have stated that except in cases involving a true emergency, physicians should generally refrain from referring patients to hospital emergency departments as a de facto backup to virtual care or as a replacement for in-person appointments.
Physicians should be aware of the guidance from their Colleges, specialty organizations, and medical associations and federations concerning the provision of virtual care. The Canadian Medical Association’s Virtual Care Playbook [PDF]1 is one such resource providing practical guidance on appropriate use of virtual care.
The general expectation is that physicians are to meet the standard of care, regardless of whether the care is delivered virtually or in person. Physicians should be mindful of the limitations of virtual care and ensure patients are provided the opportunity for in-person care, where appropriate and available. That said, Colleges and courts may consider extenuating circumstances that would preclude a physician’s ability to provide in-person care, such as the conditions physicians are working in at the time, availability of personal protective equipment, and public health orders.
Before providing virtual care to patients in another province or territory, physicians should consider whether they have complied with applicable virtual care and/or telemedicine licensing requirements.
Licensing requirements vary between jurisdictions. The College of Physicians and Surgeons of Nova Scotia, for example, permits physicians licensed anywhere in Canada to deliver telemedicine services to patients in Nova Scotia, unless specifically restricted from doing so by their home licensing body. Other Colleges, such as Québec’s, require special registration and may place conditions on the provision of such services.
Managing expectations and processes
Physicians have an ethical obligation to establish and maintain an appropriate physician-patient relationship no matter the clinical setting. A good starting point when contemplating virtual care is to consider whether the virtual encounter will lead to an adequate assessment of the patient. Further, does it allow a physician-patient relationship to be established and fostered? Even if a physician can answer these questions in the affirmative for a particular patient, it’s important to understand there are limitations to virtual care and to manage patient expectations accordingly.
Virtual care changes not only the modality of the patient encounter, but if contemporaneous documentation of the visit is not available, it can also impact communication with other providers involved in the patient’s care. Consequently, existing processes for managing follow-up care, making investigation requests, and documentation processes that are designed for in-person care may need to be assessed and modified for virtual clinical encounters. The requirements for documenting a clinical encounter in the patient’s medical record is the same whether the care is provided virtually or in person.
Medical liability protection
CMPA members are generally eligible for assistance with medico-legal matters arising out of virtual care provided in Canada and where the legal action or College complaint is initiated in Canada. When contemplating providing virtual care and either the patient or physician, or both, are outside of Canada, members should refer to the article “Providing virtual care (including telehealth)”2 for more information about eligibility for CMPA assistance. CMPA members may also contact the Association for individualized advice.
The bottom line
- Discuss with the patient and obtain consent for the proposed use of virtual care.
- Ensure you have robust systems for follow-up care and documentation of each clinical encounter that are consistent for both virtual and in-person care.
- Integrate the provision of virtual care with in-person care to the extent practicable in the circumstances.
- Avoid using virtual care, if possible, for patients or medical care that are not well suited to this modality.
Dermer M. Canadian Medical Association, College of Family Physicians of Canada, Royal College of Physicians and Surgeons of Canada; 2020 Mar. Virtual care playbook [cited 2021 Feb 10]
Canadian Medical Protective Association. CMPA;2013. Practising telehealth [cited 2021 Feb 10]