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Doctor’s liability while teleconsultation: a complete guide

Remember a time when you visited your doctor at his clinic, he examined you and wrote down a prescription? You then would go for a follow-up consultation and, if the medicine wasn’t effective, the doctor suo moto would probe more, and ensure the correct medication is prescribed to you until recovery.

What happens when those doctors’ visits become phone calls and clinics become video calls? Especially in the midst of a pandemic. When does the doctor’s liability end? Can he be excused because he can’t examine you in person? Can the doctor be made accountable? To what extent? Does the patient have the right to point fingers at the doctor in case of mishaps? Can a doctor make the patient and his relatives liable for their actions? Which regulations govern this? By the way, is teleconsultation by a doctor even legal? Let’s find out.

Telemedicine Practice Guidelines

Did you know that until recently, doctors were not allowed to offer first consultation digitally? The first consultation was mandated to be held in-person. And only follow-up sessions were allowed to be conducted virtually.

Owing to the pandemic, the Indian Government published Telemedicine Practice Guidelines on March 25, 2020. This was done via an amendment to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Here’s the relevant extract:

3.8.1. Consultation through Telemedicine by the Registered Medical Practitioner under the Indian Medical Council Act, 1956 shall be permissible in accordance with the Telemedicine Practice Guidelines contained in Appendix 5 (of Code of Conduct).

These guidelines now clarify India’s position on the legality of teleconsultation. According to these guidelines, it is now perfectly legal to provide teleconsultation by registered medical practitioners (M.B.B.S and above). However, such consultation has to be conducted in accordance with the guidelines. Additionally, it has now been clarified that the first consultation between doctor and patient need not be in-person. Doctors can provide the first consultation digitally too, via teleconsultation.

Before we proceed, let’s understand what teleconsultation means:

“The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities”

teleconsultation

Teleconsultation is not a new concept. It has been offered by doctors since 2000. However, in the absence of statutory basis and support, it was not clear whether it was legal or not. In fact, several State Medical Councils had even banned the practice of teleconsultation. In spite of this, the practice of telemedicine and teleconsultation prospered. However, now, it has been clarified that doctors can provide teleconsultation to any patient across India.

Guidelines doctors need to follow while teleconsultation

  • Doctors can provide teleconsultation for:
    o Prescribing medication
    o Providing counselling (eg.: dietary recommendations, dos and don’ts, proper use of medical devices, controlling allergic reactions, etc.)
    o Imparting health education (advice on contagious infections, immunizations, exercises, hygiene practices, mosquito control)
  • Doctors who provide teleconsultation have to display their registration number in all communications exchanged with the patient. This means that if your doctor sends you a prescription or fee receipt via WhatsApp, his registration number should also be contained in that message. If the doctor sends the prescription or his fee receipt without his registration number, he is in violation of the guidelines
  • Doctors have to take additional precautions while issuing a prescription during teleconsultation. Only certain kinds of medication can be prescribed via teleconsultation
  • As a thumb rule, prescribing medicines for chronic diseases (such as diabetes or asthma or hypertension) should be avoided during teleconsultation, unless it is an extension of an earlier prescription obtained during an in-person consultation which was conducted less than six months ago. If a prescription for chronic diseases is to be issued, then the teleconsultation should be done strictly via video only. No medication for chronic diseases can be prescribed via a voice call only. A prescription can be sent through any electronic medium such as email, WhatsApp etc. as a photo / scan / digital copy of a signed prescription or an e-prescription
  • As a first step, before proceeding with the teleconsultation, it is the duty of the doctor to exercise professional judgement and decide whether the teleconsultation is, in fact, appropriate and in the interest of the patient. If the answer is yes, only then the doctor should proceed with the teleconsultation. For example, a complaint of appendicitis may require a physical examination and teleconsultation may not be preferred. On the other hand, some common complaints may not require physical examination or even consultation in real-time. Teleconsultation can be scheduled for such cases
  • Doctors can choose their own medium of teleconsultation and patients have to accept the medium chosen by the doctor. If the doctor is comfortable on WhatsApp, the patient cannot force the doctor to use Google Meet, he can only request
  • Doctor have to begin any teleconsultation by informing the patient about their name and qualification. This is to be followed on every teleconsultation session, even if it amounts to repitition
  • Doctors are required to provide a consultation report after the teleconsultation
  • Since teleconsultation happens on an electronic medium, the Indian law that protects personal information, including medical and health-related information of patients, squarely applies to doctors who provide teleconsultation and receive such information from patients. This is in addition to the ethical obligation to protect patient privacy
  • Doctors cannot freely provide prescriptions via teleconsultation. In order to prevent abuse, guidelines require every doctor to “prescribe medicines via telemedicine ONLY when (the doctor) is satisfied that he/ she has gathered adequate and relevant information about the patient’s medical condition and prescribed medicines are in the best interest of the patient.” Prescribing Medicines without an appropriate diagnosis/provisional diagnosis will amount to professional misconduct

Legal accountability while teleconsultation

Teleconsultation has tremendous potential in India. Scarcity of doctors is a serious problem, especially in semi-urban and rural areas. Teleconsultation can make doctors reach the doorstep of patients without having to actually step out.

Did you know: the doctor-population ratio in India is 1:1456 against the WHO recommendation of 1:1000

Until now, there were hardly any standards for doctors to follow and patients to expect during a teleconsultation. There was no clarity on prescription after the consultation or even on protection of privacy, alongwith several other shortcomings. These guidelines now give patients the right to hold their doctors accountable to provide teleconsultation as per the guidelines, which provide a clear set of do’s and don’ts for doctors. A patient can complain about the doctor before appropriate State Medical Council for ‘misconduct’ in case of violation of the guidelines. This right was not available to patients before.

legaltech

Additionally, doctors cannot state teleconsultation as an excuse for negligence. Telemedicine Guidelines require doctors to maintain the same standard of care towards a patient during a teleconsultation as they would during an in-person consultation. To put it simply, the fact that the teleconsultation took place over a mobile app or email or telephone cannot be taken as a defence by a doctor against an allegation of medical negligence. Every doctor is expected to know the limitation of teleconsultation and advise or prescribe accordingly.

The amendment also gives certain rights to the doctors

During the teleconsultation, if the doctor seeks relevant information from the patient, then the patient is supposed to disclose the right information. Guidelines have clarified that is the patient who will be responsible for accuracy for the information shared with the doctor, and not the doctor. However, the doctor must make all efforts to gather sufficient medical information about the patient’s condition before deciding on a diagnosis or a treatment.

If the doctor is not satisfied with the information provided by the patient to provide specific treatment, i.e. prescription or health advice, then he is permitted to provide limited consultation as appropriate and refer the patient for an in-person consultation.

Also, doctors are allowed to charge professional fees for every teleconsultation session. This brings teleconsultation at par with in-person consultation when it comes to doctors’ fees. The doctor is not mandated to provide a discount only owing to teleconsultation. However, a receipt or invoice should be given to the patient against the fees.

Takeaway

This means that if your doctor has not followed medical ethics and procedures set out in the guidelines, you can report your doctor and complain to your State Medical Council. These laws have been brought about to punish the unscrupulous, and not to harass doctors. Life isn’t in the hand of doctors, they can only try to save the patient. It is upon every individual to understand this and use such laws wisely.

Else we’ll have a world full of stringent medical laws but no doctors..

Also read: can Health ID and data privacy co-exist?

About author

Namita Shah is the co-founder of Presolv360, a legal-tech company focused on out-of-court civil dispute resolution. She is a CA (gold medalist), CPA and LLB. She has also studied cyber-crime management from the 'Asian School of Cyber Laws'. Namita has been recognized among the Top 60 of the ‘Women Transforming India, 2018’ initiative by the Government of India. She recently graduated (top 5) from the ‘Women Entrepreneurship and Empowerment Foundation’, run in association with Niti Aayog and IIT.
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