Understanding the Legal Pitfalls of Virtual Second Opinions: What You Need to Know
Editor’s Note: This article was originally published in Fierce Healthcare on February 7, 2025, and a portion of it is republished here with permission. Read the complete article at Fierce Healthcare.
Virtual medical second opinion (VSO) programs continue to roll out across the country, delivering expert recommendations to better help patients’ diagnoses or treatment options. These VSO programs can offer immense value to patients and their local treating doctors by leveraging the deep expertise of specialists and exporting it to rural communities and geographies that lack such sub-specialty expertise. For all the clinical benefits VSO programs offer, some doctors may be unknowingly exposing themselves to licensure risk under the belief these VSO programs are only “educational” and not the practice of medicine.
More specifically, the argument is that a doctor delivering a VSO is merely providing educational material, but not engaging in the practice of medicine, even though the VSO report itself may contain a diagnosis and treatment recommendations based on the doctor’s review of the patient’s medical records or even direct information provided by the patient. The logical conclusion of the “it’s only educational, not practicing medicine” argument is that the physician delivering the VSO need not be licensed in each state he or she serves. It’s an alluring argument because, if true, it would mean doctors could deliver second opinions to patients across the country without needing to spend the time and expense obtaining medical licenses.
Yet, the argument is largely unsupported by state law. With minor exceptions, the vast majority of doctor-issued VSOs are medical second opinions regarding a specific patient and constitute the practice of medicine. By sidestepping state medical licensing requirements to deliver VSOs, doctors risk facing claims of unlicensed practice of medicine.
Educational vs. Medical Second Opinion
The basic licensure law in each state is, to practice medicine, the doctor must be licensed in the state where the patient is located unless a licensure exemption is met. Each state has a list of exemptions to medical licensure and, while the exemptions are conceptually similar, there are significant technical differences among states.
Most states do offer a licensure exemption for educational services, but the definition of educational does not mean a detailed second opinion. Rather, it generally refers to medical demonstrations performed for the purpose of educating students or other doctors, a CME presentation at a conference, or an article or blog post about a medical condition or treatment generally. In contrast, a VSO tends to be specific to an actual patient, based on that patient’s own medical history and prior records, includes an assessment of the patient’s medical condition and symptoms, offers a potential or actual diagnosis, and concludes with a recommended course of treatment.
Naturally, it begs the question: does delivering a medical virtual second opinion constitute the practice of medicine? Yes, particularly if the person delivering the VSO:
- Holds themselves out as a doctor with medical expertise;
- Considers the specific patient’s medical history, conditions, records;
- Discusses the patient’s specific medical issues;
- Charges for the VSO service;
- Renders a diagnosis;
- Provides treatment recommendations.
Although doctors delivering VSOs do not always provide actual treatment, they almost always meet the other characteristics above, which means they are very likely engaging in the practice of medicine.
There is a licensure exemption that can be used by doctors delivering VSOs: the peer-to-peer consultation exemption. This exemption allows an out-of-state doctor to consult with a local treating physician about the local physician’s patient and deliver a second opinion (whether it be a quick curbside consult or a formal written second opinion). Nearly every state has a peer-to-peer consultation exemption to medical licensure but the technical specifics vary among states and it is important the requirements are met.
The leading case on interstate unlicensed practice of medicine and the peer-to-peer consultation exemption is Smith v. Laboratory Corporation of America (2010). In it, the federal court held a pathologist located and licensed in the State of Washington had unlawfully practiced medicine without a license when she provided a diagnosis for a patient located in Idaho and failed to meet the requirements of Idaho’s peer-to-peer consultation exemption. The Smith case means that the out-of-state doctor rendering a medical opinion must either: 1) have a license to practice medicine in the state where the patient is located; or 2) carefully structure the arrangement to meet an exemption to licensure and closely follow the specific requirements of the state’s peer-to-peer licensure exemption. Otherwise, the doctor may be found to have practiced medicine without a license.
The real risk of delivering VSOs without following medical licensure rules is borne by the individual doctor rendering the VSO. In most states, the unlicensed practice of medicine is a criminal offense, which means malpractice insurance may likely deny coverage. And if a doctor faces disciplinary action in a state where he or she is not licensed, the doctor may be required to report that to all the states where the doctor is licensed—and every one of those states will likely file reciprocal disciplinary actions like an unfortunate game of dominos. The same holds true for reporting to hospitals and clinics where the doctor holds medical staff membership and privileges.
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Continue reading the complete article here for insights into other potential pitfalls, including the financial and reputational risks of unlicensed care and the evolving regulatory changes to address the ongoing challenges and administrative expenses of multistate licensing.
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For more information on telemedicine, telehealth, virtual care, remote patient monitoring, digital health, and other health innovations, including the team, publications, and representative experience, visit Foley’s Telemedicine & Digital Health Industry Team
