Legal Implications of Online Medical Consultation

Once it was known as the saviour of astronauts in Nasa’s program, now it’s the millennial’s instant healthcare solution. However, as the popularity of online consultation increases, HE wonders if it has all got a bit out of hand.

Can you build a billion-dollar business on the backs of tech-savvy patients in India? According, to India’s digital health entrepreneurs, absolutely. Today, the rise of a new breed of online consultation platforms, fueled by algorithms and venture capital, is making it easier than to ever to get a medical consultation brought to your mobile phone. Online health services could devour, $280 billion by the end of 2020, according to Statista.com.

When did online consultation get so in?

The list of online health providers is long, and several players have attracted massive investments from investors. Online consultations have the potential to be an essential part of the healthcare delivery model in India for the following reasons. First, in India, statistically speaking, there is one specialist doctor for every 10,000 patients. In addition to that, over 90% of the specialist doctors are practising in the top 10 cities of India which makes it difficult for the users in the semi-urban and rural parts to get easy access to them. With the use of technology, online consultations allow users from various parts of India to consult specialist doctors from the comfort of their home.  As per the statistics by DocsApp, India’s leading online healthcare platform, over 50% of the users are from the rural parts of India.

Second, online doctor consultations bridge the geographical gap between the patients living in the below tier 2 parts of India and specialist doctors practising in the urban parts of India.  It allows the doctors to increase their efficiency as they can consult more patients in less time with the help of technology via online consultations.

Third, anyone who wants to consult a specialist can do so without wasting time and energy on travelling to the clinic and waiting in queues for the consultation.

“A person suffering from depression wouldn't want to confront a counsellor face to face and also keep his identity private. Online consultations allow the user to consult a doctor while maintaining their privacy. As many patients in sensitive cases do not prefer face to face consultations, online doctor consultations give them easy access to doctors and make it convenient for them to prioritise their health and privacy simultaneously. Online consultations are beneficial for people who want specialist doctor’s advice and second opinions on various health conditions like cancer, diabetes, arthritis, cardiac ailments,” Satish Kannan, CEO of Docs App, which aims to be the largest online hospital by the end of  2018.

Although examples of e-Health can be found as early as the 1960s with the use of telemetry to monitor astronauts in the NASA program, the growth of e-Health in the last decade is a direct result of the increasing pervasiveness of internet use, advances in technology, and increasing patient involvement in medical decision making and self-management of care.

“As the concept of online consultations is relatively new, one of the initial problems that we face in the online consultation space is difficulty in building trust and confidence among the users. Many patients are still convinced every health problem needs a physical consultation with a doctor and are unaware that thousands of people are getting treated every day via online consultations. In addition to that, since only 70% of the cases can be treated online, it restricts the scope of treatment for certain cases. Even in the cases that cannot be treated online, talking to a doctor online can help them get a second opinion, understand the severity of the problem and receive proper guidance from the doctors for the necessary measures that need to be undertaken,” adds Kannan.

The Quest to Clean up Online Healthcare

The effective, large-scale deployment of e-Health activities must also consider several medico-legal, financial, and technical issues. These issues range from the primary identification of which e-Health activities are most beneficial to physicians and patients to the identification of standards for managing the secure, private, and accurate transmission of personal health information across a networked community. The need for such rules and regulations was starkly apparent to consumers and lawmakers around the world when a doctor couple was booked for homicide for digital consultation. The Bombay High Court recently made some sharp observations while hearing a case of medical negligence wherein a doctor couple, Deepa and Sanjeev Pawaskar were booked under Section 304 (culpable homicide not amounting to murder) of the Code of Criminal Procedure after a woman died within a few days of being discharged from their hospital.

Legalise It!

Dhruv Suyamprakasam, co-founder of icliniq, an online doctor consultation platform points out that there is there is no regulation for telehealth players in India. “It’s technically legal. Earlier, there was a false rumour going about online consultation being illegal. If the government passes a law, it will give more validity to startups in the sector— the National Health Stack. The past of telemedicine was illustrious, the present is bleak, after a year and a half, it will be awesome. The National Health Stack is designed to provide the foundational components that will be required across Ayushman Bharat and other health programs in India. The Health Stack is a nationally shared digital infrastructure usable by both Centre and State across public and private sectors. The Stack is designed to bring a holistic view across multiple health verticals and enable rapid creation of diverse solutions in health. National Health Stack will provide necessary regulations for the telemedicine sector too,” he concludes.

Currently, there are four primary methods of telehealth. Live video, store-and-forward, remote-patient monitoring and mobile health.

“There are close to 30,000 gynaecologists in India. We have less than 8000 dermatologists in India. All of them seem to be in cities in Bangalore and Mumbai. Where will people go? A doctor is not like an Uber driver, it takes ten years to train a specialist, We have to use them in an optimised way,” explains the entrepreneur.

Suyamprakasam points out that in the last two years, several companies, have joined the bandwagon. They look at this healthcare platform; they look at this e-commerce mindset. That’s the biggest mistake. “Doctors ask right questions to get a grasp of situations. The online consultation is not an alternative to real-time healthcare. Only 70 per cent of the problems can be solved with online healthcare. A doctor also needs experience at a hospital. Similarly, there should be regulations about how many hours each doctor should be allowed to clock in for an online portal. If an Ola driver drives more than 8 hours, puts himself as well as customers under the risk, under risk,” he concludes.

The Information Technology Act, 2000; the Drugs and Cosmetics Act, 1940; and the Indian Medical Council Act, 1956 address some concerns.

Few Things Doctors should Worry About

Dr PM Bhujang, President of Association of Hospitals, offers a dose of reality to doctors, who operate in an online world. He points out that regulation on telemedicine services need to come faster. “In a country where there shortage of hospitals and doctors, there will be demand for online consultation. Should a doctor prescribe medicine online without an examination? Is it possible for a doctor to know what's wrong without meeting the patient? Who should be responsible for the liability that arises out of incorrect diagnosis?” he asks.

“A critical aspect of the examination  is to see and touch the patient. You would look at the eyes, nails and tongue. Sometimes the patient is not able to communicate what exactly the problem is. That’s the reason, IMA has requested the Medical Council of India to issue proper guidelines. Proper documentation and taking consent is essential to mitigate the risk liability for all the stakeholders,” concludes Dr Bhujang.