Telehealth and Pain Management: Avoiding Legal Problems 

December 17, 2024

With the rise of telehealth, patients now have access to convenient, effective solutions that transform how chronic and acute pain are treated. Especially for patients who are experiencing significant pain, telehealth can provide the care that patients in pain need without causing further pain by requiring them to travel to a facility. However, there are some limitations to telehealth that can cause pain management providers to find themselves in legal trouble. Here are some tips to avoid legal trouble if you are a pain management provider.

What Is Pain Management?

Pain management medical practices specialize in diagnosing and treating various types of pain, focusing on improving patients’ quality of life. These practices address acute, chronic, and complex pain conditions caused by injuries, surgeries, or medical conditions like arthritis, neuropathy, or fibromyalgia. Pain management often involves a multidisciplinary approach, including medication, physical therapy, nerve blocks, and minimally invasive procedures.

Telehealth And Pain Management 

Telehealth offers significant benefits for pain management. It increases accessibility for those with pain and mobility issues. Patients in remote or underserved areas can consult with specialists without traveling long distances. 

Additionally, telehealth can provide a lot of care that people with pain need. Pain management practitioners can provide remote physical therapy exercises or medication management. 

However, there are some drawbacks to using telehealth when it comes to pain management. One of the most significant challenges is the inability to perform hands-on evaluations, which are often essential in accurately diagnosing and treating pain conditions. Unlike in-person visits, where a provider can palpate areas of discomfort, assess range of motion, or directly observe physical abnormalities, telemedicine relies heavily on visual observation and patient self-reporting. Pain assessment often includes palpation to identify tender points, muscle spasms, or inflammation, as well as testing joint stability and reflexes—tasks that cannot be performed virtually. Additionally, pain management providers want to know how far a patient can move a joint or limb without pain. This can only be partially demonstrated via video and may lack precision. There are also concerns for patients who are partially relying on medication to help with pain. It is more difficult for providers to determine if there is medication–specifically, opiate–abuse if that patient is not being seen in person.

One way that providers have bridged the gap is by offering hybrid care. Hybrid care means that patients are seen in person at certain intervals but can do intermittent appointments virtually. A hybrid model of pain management might be the best of both worlds for patients and pain management care providers. Combining telemedicine with periodic in-person visits allows providers to perform necessary physical evaluations while maintaining the convenience of remote care for follow-ups. Another thing to keep in mind is that telemedicine, in general, will likely continue to be more advanced. As wearables expand and their efficacy increases–that is, devices that patients can wear at home that doctors can review–in-person visits may become less needed. 

Legal Concerns With Telehealth and Pain Management 

As great as telehealth can be as part of your pain management practice, there are some legal risks to avoid. These are some things to look out for:

Pain Medicine

Pain management frequently involves prescribing medications, including controlled substances. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 regulates online prescriptions and typically requires at least one in-person medical evaluation before prescribing controlled substances. Things changed during the COVID-19 pandemic. Those flexibilities were initially set to expire on December 31, 2024. However, they have now been extended through December 31, 2025. According to the DEA, this extension provides additional time to develop and finalize proposed rules for telemedicine prescribing. It is unclear exactly what will be required under the final rules. 

Informed Consent

Obtaining informed consent for telehealth services is critical. Providers must explain the risks, benefits, and limitations of telehealth, including potential technical issues and privacy concerns. Ensuring proper consent is obtained helps reduce liability risks.

Medical Malpractice and Standard of Care

The standard of care for telehealth must align with in-person care standards. Misdiagnoses, inadequate treatment plans, or errors in pain management via telehealth can lead to malpractice claims. Providers should maintain detailed records of telehealth encounters, document all decisions thoroughly, and use evidence-based practices to mitigate risks. Practitioners should also err on the side of caution and insist on seeing a patient in person if there are concerns that telehealth will not adequately address the issue, or if there are any other concerns. 

Patient Safety and Emergency Protocols

Managing pain remotely can complicate the assessment of a patient’s condition and response to treatment. Telehealth providers must establish clear protocols for identifying and addressing emergencies, such as adverse reactions to medications, unmanaged pain escalation, or potential signs of substance misuse. These protocols should include guidelines for recognizing warning signs during virtual consultations, steps for immediate intervention, and clear communication pathways to direct patients to in-person care or emergency services when necessary. Providers should also ensure that patients are educated about potential risks, instructed on what to do in case of an emergency, and provided with after-hours contact information. Failure to address emergencies appropriately can expose providers to liability.

Advertising and Marketing

Telehealth providers must avoid misleading claims about their services. Pain management is a particularly sensitive area, as unsubstantiated promises about treatments can lead to allegations of fraud or deceptive practices. Marketing materials should accurately reflect the scope and limitations of telehealth services.

Proactive Steps

Telehealth providers should take proactive steps to ensure compliance and minimize legal risks. This includes regularly reviewing and updating compliance policies to align with federal and state regulations. Providers should also offer ongoing training to staff on telehealth laws, informed consent procedures, and data security best practices. 

Contact An Experienced Telehealth Attorney

Telemedicine is transforming the way pain management is delivered. However, telehealth is a rapidly-evolving area of law, and there are requirements that providers need to be aware of. Contact an experienced healthcare law attorney for expert guidance on integrating telemedicine solutions into your pain management practice. 

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