The United States District Court for the Western District of Virginia in Corradi v. Kolls, No. 4:22-CV-011, 2022 WL 4006928 (W.D. Va. Sept. 1, 2022) recently denied a motion to dismiss filed by a defendant North Carolina doctor in a medical malpractice action involving telemedicine treatment the plaintiff received while physically located in Virginia.  The court found that although the doctor was physically present in his North Carolina office, he was subject to personal jurisdiction in Virginia based on his use of a mobile robot located in Virginia to examine the plaintiff while the plaintiff was in a clinic in Virginia.  Therefore, the court determined that the alleged tortious actions occurred in Virginia and the doctor could anticipate being sued in Virginia based on his treatment of patients located there.

There is scant legal precedent addressing medical malpractice claims in the context of telemedicine.  However, it is clear that healthcare providers need to be aware of the rules not only in the state(s) in which they reside, but also in any state in which their patients are located.   As the court found in Corradi, the North Carolina Medical Board (“NCMB”) likewise recognizes that the practice of medicine is deemed to occur in the state where the patient – not the doctor –is located.  This article will provide a brief overview of the guidance offered by the North Carolina Medical Board (“NCMB”) for providers utilizing telemedicine to treat patients in North Carolina.

What is Telemedicine?

Per NCMB Position Statement 5.1.4, “[t]elemedicine” is “the practice of medicine using electronic communication, information technology, or other means between a licensee in one location and a patient in another location with or without an intervening health care provider.”  Also, “[t]he term telemedicine incorporates the practices of telehealth.”

Is the Standard of Care Different for Telemedicine?

No.  NCMB Position Statement 5.1.4 expressly states that “licensees providing care to North Carolina patients via telemedicine will be held to the same established standard of care as those practicing in traditional in-person medical settings.”  There is currently no separate standard of care for telemedicine. NCMB warns that providers who fail to conform to the North Carolina standard of care may be subject to discipline by the Board. 

What Else Should Providers Know If Using Telemedicine?

NCMB Position Statement 5.1.4 outlines additional noteworthy considerations for providers using telemedicine:

• Staff should be trained appropriately in the technology being used;
• Providers must either provide or rely on an appropriate evaluation before diagnosing or treating patients;
• NCMB “stresses the importance of proper patient identification prior to any telemedicine encounter” to avoid fraudulent activity and improper disclosures of confidential information;
• Controlled substances may not be prescribed for pain when “the only patient encounter is by means of telemedicine and there are no other licensed healthcare providers involved in the initial and ongoing evaluations of the patient”;
• Complete medical records should be maintained in accordance with the prevailing standard of care for medical records;
• Providers should consider disclaimers “identifying any unique limitations of the electronic model by which care is being provided”; and
• While providers need not reside in North Carolina, they must have a current, valid North Carolina license to provide medical services to patients in North Carolina.