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Wisconsin board comes out with new rules governing practice of telemedicine, P.2

Last time, we began looking at some of the aspects of new rules governing the practice of telemedicine in Wisconsin. The rules have yet to be approved by the Governor and the Legislature before they can be published and take effect, but physicians are already beginning to gear up for the changes.

As we noted last time, the rules specifically define what constitutes the practice of telemedicine and the requirements for a physician to engage in diagnosis and treatment. The rules also impose the same standards of care and ethical conduct as in the ordinary practice of medicine, which is an important point from the standpoint of physician discipline and legal liability.

One particular point which has been a point of criticism for telemedicine in some quarters is informed consent, and specifically the challenges of ensuring patients understand the risks of receiving medical care by telecommunication. As we noted, informed is one of the requirements the new rules impose on physicians as a condition of offering diagnosis and treatment.

Under Wisconsin law, informed consent requires physicians to ensure their patients understand the “availability of reasonable alternative medical modes of treatment,” and the benefits and risks of these alternatives treatments. The law requires physicians to communicate that which a “reasonable physician” would communicate, meaning that reasonableness is the standard when determining whether the physician has had adequate communication with the patient.  

Physicians are, under Wisconsin’s informed consent law, not required to inform patients about certain matters, including: highly technical information; apparent risks; extremely remote possibilities that could cause false or detrimental alarm; information in emergencies that could cause harm; information in cases where the patient is not able to consent; and information about alternative treatments for conditions not included in the diagnosis.

In our next post, we’ll continue looking at the issue of informed consent, specifically the potential challenges of obtaining informed consent in the context of telemedicine.