Q & A on Telehealth Marketing with Legal Expert Joe McMenamin

On November 17, attendees of the Fall 2016 CTeL Telehealth Summit will focus on an important emerging issue for the telehealth community: the potential risks and liability posed by telehealth marketing. Joining the panel will be telehealth legal expert Joe McMenamin, MD, JD, a physician-attorney whose law practice and consultancy concentrate on and benefit from his twenty years’ experience in telemedicine.

Joe advises institutional and professional telehealth service providers, remote monitoring services, trade associations, telehealth platform companies, private equity firms, and telecoms on a broad array of medico-legal questions arising from distance care. In a short Q & A session with CTeL, he offers an introduction to the Summit panel and the legal issues in telehealth marketing:

Q
Who should attend this session, and what will attendees learn?
A
The session will be valuable to CFOs, marketers, risk managers, insurers, general counsel, and defense counsel. What you will learn: The FTC is looking at you. Your state board is looking at you. And your friends at the plaintiffs’ bar are looking at you. The message is not to stop communicating. The message is to communicate more safely and carefully, and we will show some things to avoid.

Q
Why should a telehealth marketing audit be a high priority for any provider or organization offering telehealth services?
A
Marketers are highly skilled at what they do, and with respect to their objectives, often achieve excellent results. Unfortunately, those very capabilities can give rise to legal risk if they get a little too enthusiastic. Plaintiffs’ lawyers may try to quote marketing statements as though they were binding promises. In several respects, contract claims can be more dangerous than tort claims. An audit of marketing claims can identify language that should be modified so as to permit conveying the desired message, but in a manner more sensitive to the legal climate.

Q
Would telehealth marketing-related claims most likely present themselves as part of a medical malpractice suit, or could they pop up in another context?
A
Marketing statements could be employed to argue that the defendant marketer had actually imposed on itself a standard of care higher than state law does. This could come in the context of a malpractice claim, or it could be pressed into service to support a contract claim, or both.

Q
Why must organizations offering telehealth services worry about the content of their internal communications in addition to their external communications directed to the public?
A
In many states, legislation has created protections from discovery for sensitive internal documents created to maintain and improve providers’ quality of care. Courts have varied, however, in their willingness to enforce these laws. Moreover, many such statutes condition protection on adherence to specified procedures, and providers have not always been meticulous to comply.

Potentially even worse, some telehealth service organizations may not qualify for the protections available, as technically they may not qualify as healthcare providers under state law. Since the protective statutes are generally deemed to be in derogation of common law, courts are sometimes receptive to the importunings of the plaintiffs’ bar.

Learn more about how to minimize the risks and liability associated with telehealth marketing. Register now for the Fall 2016 CTeL Telehealth Summit.

 

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