Physician health coaching raises telemedicine issues

Physician health coaching raises telemedicine issues, as it’s challenging (but not impossible) for medical doctors (like any professional) to remove the professional hat.  Below.

I’m not a doctor, but I’d like to play one on TV

Dr. Tom has a specialty in some area of medicine – let’s say medical weight loss – and wants to use his vast, specialized knowledge to help patients as a “health coach.”

Frankly, Dr. Tom is burned out on medical practice and wants to transition to a platform where he makes a living offering advice online, to patients across the country (and internationally), about weight loss.

He asks for legal advice as to whether he can market himself as “Dr Tom Weight Loss Consultant.”

Dr Tom hired a large law firm and paid a hefty retainer.  He received a ten-page memo outlining all the reasons he could not do his business.  Half the memo contained law firm disclaimers.  The “No” was in large font, capitalized, and underscored, bolded and italicized.

Dr. Tom went to a second lawyer, which dithered around for six months, trying to learn the area.  They had done a good job with his asset protection plan, but they had to call a bunch of healthcare lawyers and got conflicting answers.

Dr. Tom went to a third law firm which then charged him to critique the memo from the first law firm.

That’s when he called our law firm. He told us he might as well have saved his money and listened to these lyrics from David Bowie:

Ground control to Major Tom

Ground control to Major Tom

Take your protein pills and put your helmet on

He wanted some real answers.

We cut to the chase with a one-hour consult.

Advice to Dr. Tom about removing the helmet

Can Dr. Tom remove his “medical doctor” helmet and put on the cap of a “wellness coach?”

The health coaching category is legally tricky, although there are thousands of health and wellness coaches out there.  Some human, some in app form.

Dr. Tom asks: “what if I add the word, natural, as in natural health and wellness coaching?”

Adding words doesn’t dilute the legal effect.  There are just more words to look at – more words that can be flagged by a regulatory authority, or used as fodder by a plaintiff’s law firm “troll.”

In general, it’s not easy to remove the professional hat once it’s on.  For example, using the designation “MD” or going by the title “doctor” is often a statutory violation, unless the MD is earned or the person has some legal umbrella for using the “doctor” designation and/or explains what the designation means (if not a medical doctor).

For example, JD stands for “juris doctor,” but no lawyer should advertise services as a health coach and use the term “doctor” based on a law degree.

Per usual, there’s a lot of strategy involved, and a lot depends on exactly what Dr. Tom wants to do and how he describes his services.

A wrinkle in the scenario

We can add another wrinkle to the scenario where Dr. Tom is:

  • licensed in another country but not licensed as a medical doctor in any U.S. state
  • someone who used to be state-licensed to practice medicine, but his medical license lapsed and he has not renewed

In either of these scenarios, Tom has the status of a non-licensed practitioner.

There are some similarities with Dr. Tom’s scenario, in that he’s trying to work outside his medical license, yet leverage off his medical training and knowledge.

Still, it’s like being a good driver but without a license to driver, so we have to find some legal strategies where Tom can mitigate his legal risk, and build his dream.

Some legal strategies

The first question is whether Dr. Tom, in his afterlife as a health coach with specialized knowledge about weight loss, is engaged in clinical activities online (telemedicine) or merely an educational, informational enterprise.

It’s easy for Tom to say the latter, but it depends on how regulators will see his activities.

The more Tom gives specific, clinical advice to an individual — as opposed to more generalized activities like webinars, CDs/DVDs, audio recordings, and books – the more he can be tagged for practicing “medicine.”

If he is practicing medicine then he has to follow telemedicine rules, which usually include:

  • having a medical license in the state where the patient is located, as well as in his home state
  • following the medical standard of care for diagnosis and treatment of the patient’s specific condition
  • giving proper informed consent
  • following privacy and security rules (such as those created by HIPAA)

Weight loss is a particularly tricky area, because while people can get lifestyle advice for weight loss, obesity is a diagnostic label.

Here are some legal strategy points Tom should consider:

  • Among other things, Tom should avoid references to diseases, such as obesity, on his coaching website.
  • Also, to the extent he uses the designation “Dr” or “MD,” Tom should have a prominent disclaimer, explaining that although graduated from medical school and received his medical license, he intends to function in a non-medical role.
  • A well drafted disclaimer can help both the online visitor and the medical board or enforcement authority understand that Tom is trying to do something educational – i.e., something other than expand his medical practice via telemedicine.
  • Tom should avoid language that could medical treatmenta, such as “integrative weight loss care.”
  • Tom should avoid activities that suggest the practicing of medicine, such as: ordering bloodwork or reviewing labs.
  • Tom’s disclaimer should include a recommendation that patients consult their primary care physician for diagnosis or treatment of their disease.
  • Tom should offer informational webinars and courses.

Question: if Tom offers his services in beta mode, for a limited, for free, does this help?

Elsewhere on our blog we warn about medical freebies.

As to practice, consider this statement from the New York Office of Professional Medical Conduct:

If a patient receives professional advice or treatment, even gratuitously, there is prima facie evidence that a physician-patient relationship exists.

Telemedicine, as mentioned, has greater requirements:

Having engaged in a professional relationship via telemedicine, the physician or physician assistant must meet the same expectation of quality as in the traditional medical care process. Other expectations necessarily follow. The first are ethical issues and they include: The physician or physician assistant, having established a relationship, has a duty to be available for care when it is needed or to see that there is a reliable provision for care and advice. The fact that the advice or treatment occurred via electronic media does not change the requirement for follow-up care.

Earth is very blue, and there is something you can do, if you’re a physician contemplating a move into online telemedicine or health coaching.  Contact us for legal strategies relevant to your situation.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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