Physician-Patient Relationship In Telemedicine Services
In order for there to be potential liability on behalf of the physician providing telemedicine services, a physician-patient relationship must be found to exist. The duty of a physician toward a patient arises from the establishment of the physician-patient relationship. Normally, a face-to-face office interaction between patient and physician will be enough to establish a relationship between the provider and the patient. Courts have generally found that the physician accepting or undertaking treatment creates the physician-patient relationship.
Courts will generally balance a number of factors when determining whether a patient-physician relationship exists in a particular case. Some of the factors that will normally be considered by courts include whether there has been direct contact, whether the physician examined patient records, whether a consultation was directly to a patient or was rather a peer-to-peer consult, whether there was a physical examination, among other factors.
Determining whether a physician-patient relationship exists under Wisconsin law is generally straightforward. Wisconsin courts will generally examine whether professional services are provided by a physician and accepted by a patient. Ande v. Rock, 256 Wis.2d 365, 647 N.W.2d 265 (Wis. App. 2002); Froh v. Milwaukee Medical Clinic, S.C., 85 Wis.2d 308, 270 N.W.2d 83 (Wis. App. 1978); Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358 (1999).
In a typical interaction, a patient presents to a physician for treatment. In most conditions, the physician may determine whether or not to accept the responsibility to provide service. There are some restrictions on the ability for a physician to decline treatment, but in general, Wisconsin law providers significant latitude for physicians to determine who to accept as patients.
The difficulty arises when a telemedicine transaction crosses state borders. Other states are much less clear and do not provide nearly as much latitude for the physician to determine whether to create a physician-patient relationship.
Most states put the burden on the patient to prove that a physician-patient relationship has been created. Courts in various states have focused on a variety of factors and there is no concise uniform definition that can be generalized in cases that fall in the margins.
The nature of the telemedicine services is that the patient and the physician are not in the same room and a “hands on” examination is not made by the physician personally. Each relationship that is created through means of technology needs to be analyzed on its own to determine whether a physician-patient relationship is created.
The typical telemedicine interaction will clearly involve a patient-physician relationship. The interaction will involve a patient that is seen before or is admitted and examined by an outreach or spoke site in a telemedicine program. In fact, caution should be exercised in any situation where the patient relationship is first established by means of technology with no staff or professional involvement present and dealing with the patient.
Situations that raise some question concerning whether a patient-physician relationship is established include physician-to-physician consultations, unsolicited internet contact from patients, and passive website health portals.