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Uruguay: telemedicine and Covid-19
Bergstein Abogados, Montevideo
Ignacio Torres Negreira
Bergstein Abogados, Montevideo
The Covid-19 outbreak has accelerated the development (in some cases faster than expected) of technologies and communications.
In Uruguay, public health has not been alien to all these changes. Although telemedicine has been on the radar of the Uruguayan legal system for a considerable time, the Covid-19 outbreak triggered the legislative process of the bill which governs telemedicine and which was enacted on 25 March 2020 (Law No. 19,869 or the Telemedicine Act).
The World Health Organization (WHO) defines telemedicine as:
‘The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities.’
Telemedicine is about advice, support and delivery of medical services at a distance through the use of technology and communications.
Over time, Uruguay has taken significant steps which have facilitated the technology use for health attention purposes:
- e-document and e-signature recognition;
- personal data protection legislation aligned with the European Union’s General Data Protection Regulation (GDPR);
- electronic medical records (for purposes of implementing telemedicine, the electronic medical record is essential as it facilitates the exchange of information at a distance); and
- electronic medical prescriptions.
The Telemedicine Act establishes the general guidelines for the implementation and development of telemedicine. it encourages health providers to render these kinds of services. The Act seeks to be a milestone to further develop an appropriate legal framework which can provide sufficient guarantees to all of those involved: health providers, physicians and patients.
The Act empowers the Ministry of Public Health to determine the authorised telemedicine services as well as to draft and compile applicable protocols. Since continued update is of the essence for telemedicine development (imposed by its inherent dynamism), the determination of authorised services and action protocols are referred to the Administration’s regulation and continued update.
All regulations on personal data protection must be met. Since patient information is deemed sensitive, it is confidential and subject to physician-patient privilege.
Types of telemedicine
The Acts admits several types of telemedicine:
- Tele-assistance: allows doctors to control chronic, convalescent or elderly patients in their homes. In this way, the physician can give direct follow-up to patients without the need for them to be hospitalised.
- Tele-consultation: users can indicate their symptoms or consultations to the physician, who will be in charge of deciding if it is necessary for the person to undergo an examination at the hospital. In this online consultation, the medical doctor can give their diagnoses and prescribe the applicable treatment, whether medical, pharmacological or surgical.
- Tele-radiology: based on the electronic transmission of clinical images (in particular radiological or magnetic resonance images), it is particularly important to get a specialised second opinion. This form of telemedicine allows the transmission of such information without the need to travel.
- Tele-health education: the videoconference system is very useful in medical training: Videoconferences allow medical students to observe how a certain surgery is performed while at the same time receiving detailed explanations, all as if they were present at the surgery room themselves. This system also allows the generation of expert conferences or medical meetings, among many other possibilities.
- Tele-surgery: as technology developments will so allow, at a certain future stage, it may be possible to conduct surgical interventions remotely.
Advantages and disadvantages
When discussing the advantages of telemedicine, the first and foremost obligatory references are universality and equal access. Telemedicine guarantees better access to health services for the entire population by bringing it to remote places.
Telemedicine allows the improvement in the quality and scope of the patient’s care. For example, doctors can count on the support and decision making of professionals located in other areas.
Efficiency is the third foundation of telemedicine. The optimisation and improvement of healthcare resources, management and professional communication is outstanding.
Perhaps the most controversial aspect of telemedicine has to do with its legal liabilities. The possibility of having a physician held liable for actions distantly performed seems under dispute. Holding a professional liable for their work would discourage any development of telemedicine. Physicians would be reluctant to provide an opinion or make a diagnosis by these means when their professional responsibility is at stake.
On the other hand, it is true that professionals involved in patient care, whether in person or at a distance, must comply with best practices standards to assist patients (lex artis) and act with due diligence, regardless of the circumstances.
In Uruguay, the general rule of civil liability is that whoever damages another person through their own fault or negligence must compensate for the damage caused.
Health providers, in particular, are obliged to provide patients with a specific diligence standard: the patient shall be treated according to the progress of science. For that reason, the use of telemedicine tools can be a useful complement for the physician in order to obtain second opinions and provide diagnoses or treatments – ultimately limiting the error margin.
Not only is telemedicine an extremely valuable tool to tackle the current problem of coronavirus, but it also addresses structural problems of our health system, such as the universality of care and improvement in quality of the services provided.
Telemedicine is a tool which is should be part of health care for future generations.