Cleveland Clinic promotes second medical opinion – telemedicine consults can fit legal exception

Cleveland Clinic is marketing an online second opinion service for patients who live outside Ohio but want medical input.There are many ways to take advantage of telemedicine laws to provide online medical services.

One is to provide informational online health services, and to try to distinguish an educational service from a clinical service. The law differentiates between health information, which anyone can provide, and medical diagnosis and treatment. But drawing the line between the two is not always easy. This is where an experienced telemedicine attorney can provide valuable legal advice. Disclaimers can help, but they have to be drafted carefully.

Typically, telemedicine raises issues of unlicensed medical practice. Even if a physician is licensed in his or her own state, the remote state – that state where the patient is located – will also be able to have its laws weigh in on the legality of the online medical consult.

There is another model, which is to take advantage of the exception found in many state physician licensing laws for a consult from the doctor in the medical remote state, to the medical doctor in the home state of the patient. The remote state doctor can legally provide a consult, in many states, and not be considered to be practicing medicine without a license in the home state.

In the Cleveland Clinic model, there is a form whereby a physician outside of Ohio can request a consult with a Cleveland Clinic physician.

It gets confusing as to which is theoretically the “home” state vs. the “remote” state, but it’s all a matter of perspective. Here, the doc outside Ohio is “home” because that is where the patient is, so Ohio ends up being the “remote” state even though the requests for second opinions will be coming from other states.

Note that this program excludes various states.

We are not expressing any legal opinions or conclusions about the above model, except to note that telemedicine has become an arena in which technology and market practice are outpacing regulation. Regulators are trying to keep up – with limited telemedicine licenses being available in some states (such as Texas), and with telemedicine law being extended to nursing, psychology, and other professions. But in general, it takes creative legal thinking to put together a good structure for an online health, medical, or wellness program where clinicians will be rendering advice to patients across state lines.

Contact our skilled online health legal team for more information about telemedicine laws relevant to your business or practice.

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