The impact of COVID-19 resulted in a significant increase in the use of telemedicine across Canada. Some Regulators of healthcare providers directed their members not to see patients in their offices, adding to the need for patients to be treated via telemedicine.  Accompanying the rapid increase in the reliance on telemedicine are the usual risks of possible negative impacts on the businesses offering telemedicine services. 

Complaints to Regulators: Impacts on Telemedicine Services

Telemedicine services cannot be provided without the licensed and insured healthcare providers. Those services could be drastically impacted should Regulators receive complaints against the healthcare providers providing the services to patients which has led to an unsatisfactory encounter or outcome of the service provided.

Many new companies are in the business of offering telemedicine services to patients. These services are highly regulated. The danger to telemedicine companies relates to, for example, a lack of adequate training to professional and non-professional staff; and a lack of understanding of and lack of implementing regulatory requirements. The handling of medical records and the manner in which that is to be done is regulated not only by the Colleges but also by various laws in various provinces. Contracts must clearly state the duties and obligations of the professional health care providers both during their service and following termination of their services, to a company facilitating the practice of telemedicine. 

Business Considerations

The following are examples of the result of lawsuits:

• Telemedicine providers should ensure that the physicians they employ are properly licensed to practice. Solgi v College of Physicians and Surgeons of Saskatchewan¹ shows that not all individuals who apply for telemedicine roles are qualified to practice. Dr. Solgi was an internationally-trained family physician practicing in Saskatchewan under a provisional license, a condition of which was that he must practice under the supervision of a College-approved physician. After applying for approval to practice telemedicine, Dr. Solgi’s provisional license was suspended as the College believed he had not been practicing under the proper supervision. Companies need to know exactly what healthcare providers can and cannot do.
• Providers should ensure the services they wish to provide, and business model for doing so, are authorized to be provided through telemedicine in their jurisdiction.
• In 2217758 Ontario Inc. v Ontario (Attorney General)² where an optician sought to effectively outsource the writing of patient prescriptions to optometrists or ophthalmologists in other provinces based on a machine test, without such physicians examining the patients. The Court found that the optician had failed in establishing the legality of this business model.
• Providers should exercise caution in entering lease agreements for equipment to be used for the provision of telemedicine services. As demonstrated in another Ontario case³, such lease agreements may contain broad and restrictive provisions. The lease agreement contained a broad no-cancellation provision whereby the pharmacy’s ability to terminate the lease was eliminated, even if the telemedicine studio for which the equipment was being used, ceased operating. The Court held that due to the surrounding circumstances in which the lease agreement was signed, the no-cancellation provision was unenforceable. However, the Court noted that the circumstances in this case were “highly unusual” and in ordinary circumstances such provisions would generally be enforceable.⁴

Patient Complaints to Regulators

A survey of reported decisions of provincial Regulators across Canada demonstrates that complaints by patients are occurring following their interaction with health care providers through telemedicine. Examples of the types of issues dealt with by Regulators:

• inappropriate monitoring of a patient’s condition requiring the health care provider to only provide in-person direct care⁵;
• improper billing⁶;
• a health care provider failed to supervise others for telephone and/or virtual online meetings with patients⁷;
• lack of proper documentation of the telemedicine encounter with a patient; lack of adequate record keeping resulting in the health care provider being limited on the number of telemedicine services that could be provided⁸;
• licence to practice medicine revoked because of improper storage of patient data; improper destruction of medical information; inadequate documentation of telehealth events; lack of sufficient knowledge in the use of telehealth technology and telehealth clinical skills; inappropriate billing for telemedicine services; a lack of use of appropriate medical software for interactions with patients; double billing for virtual visits; and repeatedly prescribing or renewing prescriptions for patients without proper follow-up when the initial encounter was through telemedicine⁹;
• providing a prescription for a patient in another jurisdictions in which the health care provider is not licensed to practice¹⁰;
• A patient died following ‘care’ provided via telemedicine, because of lack of proper diagnosis and failure to refer patient to the appropriate medical professional.¹¹

In several jurisdictions regulators in response to patient complaints have ordered physicians to have a chaperone present during patient encounters.

Due Diligence - Companies

In order to avoid regulatory threats to their telemedicine businesses companies need to be aware of the requirements of various regulators in the practice of telemedicine which can vary from province to province.

The Future

It is anticipated lawsuits and complaints to Regulators will continue to grow.

To read other articles in the Dentons’ Pick of Canadian Regulatory Trends to Watch in 2023 series, click here.

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1. Solgi v College of Physicians and Surgeons of Saskatchewan, 2022 SKCA 96 [Solgi] ↩
2. 2217758 Ontario Inc. v Ontario (Attorney General), 2015 ONSC 1 [2217758 Ontario Inc.] ↩
3. MacQuarie Equipment Finance Ltd. v 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139 [MacQuarie] ↩
4. Ibid at para 37. ↩
5. Dr. Paul Phelan (Consent Order, 2022) link: https://www.cpspei.ca/decisions/order-on-consent-dr-paul-phelan/ ↩
6. Ziarko v College of Physicians and Surgeons (Sask) 2022 ↩
7. Kloppers (Re), 2014 CanLII 56884 (MB CPSDC) ↩
8. Mayba (Re), 2021 CanLII 143149 (MB CPSDC) ↩
9. Ahluwalia v College of Physicians and Surgeons (Man), 2017 MBCA 15 (CanLII); Zhu v University of Saskatchewan (College of Medicine), 2020 SKQB 308 (CanLII ↩
10. Heinrichs (Re), 2018 CanLII 105362 (NS CPS) ↩
11. Médecins (Ordre Professionnel Des) c. Ginsberg, 24-2019-1072 ↩