Telemedicine means the remote diagnosis and treatment of the patients by the means of telecommunications technology. Multiple technologies can be used for delivering telemedicine consultation. There are three primary modes. They are Audio, Video and Text (chat, messaging, email, fax etc.). Telemedicine is also referred as e-health or telehealth. It is a perfect combination of modern-day information technology and medicine. Telemedicine reduces the costs on time, expenditure and cuts travel of long distances for consultation and treatment in cases where there is no necessity for physical access, follow-up consultations, etc.Only the registered medical practitioners are entitled to practice telemedicine. A Registered Medical Practitioner is a person who is enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act 1956. Earlier, there was no statutory framework on the practice of telemedicine, through video, phone or any other Internet-based platforms.

Digital technologies also referred as the telemedicine in Indian healthcare are certainly witnessing huge adoption due to the lockdown imposed to reduce the spread of the coronavirus disease Covid-19. Therefore, it has become need of the hour to know the legal rights and obligations of the doctor, when they provide their services through online means.

There are legal risks which are associated with the new developments of Telemedicine. Following are some of the legal issues which might arise in Telemedicine practice:

• Litigation for medical negligence

There is a high risk of litigation for medical negligence which could take place in future due to the Telemedicine practice. In the cases of medical negligence, there are two basic requirements which must be fulfilled. The doctor-patient relationship must exist, and the doctor must have breached his professional duty of care towards his patient.

• Doctor-patient relationship

There must be a contract either express or implied between the doctor and the patient in order to establish that there was adoctor-patient relationship between them. However, in telemedicine, it is not clear for determining whether the doctor-patient relationship exists online or through an email.In case if the interaction takes place between the doctor and patient at the time of emergency situation where the doctor was forced to treat the patient, then it will be considered that there was no doctor-patient relationship existed.

Hence, there are certain provisions mentioned under the Information Technology (IT) Act 2000 which will apply to the Telemedicine practice. For Instance, Section 4 & 5 of the said IT Act has given legal recognition to the electronic record and digital signatures. The IT Act has also amended the Indian Evidence Act 1872 in order to make the electronic record admissible in the Court as evidence.

• No standard degree of care

In the traditional medical profession method, the standards required for a reasonable degree of care and skill by the doctors was laid down by the Supreme Court under the case of Poonam Verma V/s Ashwin Patel. However, telemedicine being a new concept, does not have the same standards of care as laid down.The standards of a reasonable degree of care and skill are not mentioned/determined for the doctors practicingtelemedicine as there has been no case of medical negligence brought against such a doctor.

• Liability of Doctors

In case if a doctor practicingtelemedicine fails to respond to the patient’s request for medical attention and the patient suffers injury then it is possible that a doctor-patient relationship would be deemed to exist and the doctor would be held liable. Yet in another scenario, if a doctor is on vacation and the patient believes that he will receive a timely response and suffers an injury because the doctor fails to respond. In the above circumstances, it is not clear that whether the doctor has any responsibility to respond in regard to the patient’s treatment or to notify the patient that he cannot assist them for any reason.  In case of errors which takes place due to a breakdown in communication or organization during the telemedicine application, then the primary principles of organizational responsibility will possibly apply.

• An issue relating to Security

There is another legal issue relating to the security of the patient’s information in telemedicine practice. The legislation for telemedicine practice must protect the privacy of the patient, authenticate the information, authorize, and maintain integrity. Hence, the security policy would help in making the telemedicine practice more efficient, risk-free and reliable.

Deepa Sanjeev Pawaskar and Another V/s State of Maharashtra

Bombay High Court - 2018 judgment on Telemedicine Practice Guidelines

Criminal Anticipatory Bail Application No - 513/2018

In this case, the patient was suffering from fever and severe vomiting. She was admitted to the nursing home of the doctors (who were accused) by the hospital staff without examination as the doctors were out of town. One of the doctors started treatment of the patient telephonically, by instructing on-duty nurse. The Bombay High Court held that the patient died because she was prescribed treatment over the telephone without an appropriate diagnosis. The Court also found that such an act amounts to criminal negligence.The Court rejected the bail application of the doctors. The doctors were not arrested as they were successful in receiving the bail-in appeal. Hence, many doctors interpreting the judgment deeming telemedicine illegal. However, the High Court was only concerned with the fact that there was a failure on the part of the doctor to diagnose the patient, and it does not interfere with the Telemedicine guidelines. The fact that the treatment of the patient was done through the telephone is only incidental to the conclusion of the judgement.

Earlier, as there was no appropriate framework that existed for the telemedicine practice, the Bombay High Court had created uncertainty about the place and legitimacy of telemedicine in its 2018 judgment.Hence, there has been a legal concern on the practice of telemedicine as there is a lack of clear guidelines which has created significant ambiguity for registered medical professionals in India.The existing Indian Law does not adequately address concerns relating to Health Information. It isessential to first understand the specific problems of the Indian patients and Healthcare provider with regards to the telemedicine practice before framing legislation that addresses their legal issues relating to it.Telemedicine practice will change the medical industry in India. However, a lot depends on how telemedicine practice is regulated in India and how a doctorpracticingtelemedicine incurs liability in the cases of medical negligence.