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Physicians offering patient-specific virtual second opinions must secure state licensure or use peer-to-peer exemptions to avoid unlicensed practice claims.

Virtual healthcare has experienced significant growth over the past few years. According to partner and chair of the Telemedicine & Digital Health Industry Team at Foley & Lardner, healthcare lawyer Nathaniel Lacktman, virtual second-opinion (VSO) programs are popping up nationwide, as they provide tremendous benefits to patients seeking more clarity on their diagnoses. Among the many valued elements of VSOs is the ability to leverage the knowledge of specialists around the country and bring their expertise to rural communities and other populations that don’t otherwise have access to specific sub-specialty expertise.

The Educational Versus Medical Practice Distinction

Despite their patient-centric goals, VSOs carry hidden licensure risks for physicians who assume these consultations are merely “educational.” As Lacktman warns, “If a physician assumes the former, they might be overlooking, for example, that their VSO report contains a diagnosis and treatment plans.” Such activities—reviewing patient records, rendering diagnoses, recommending treatments, and charging for those services—constitute practicing medicine.

Many states offer licensure exemptions for purely educational services, typically demonstrations or lectures not tied to a specific patient. “The meaning of ‘educational services’ does not include a detailed second opinion,” Lacktman explains. By contrast, VSOs involve personalized recommendations based on an individual patient’s medical history, which clearly falls under the practice of medicine.

Leveraging Peer-to-Peer Consultation Exemptions

To mitigate unlicensed practice risks, Lacktman highlights the peer-to-peer consultation exemption. Under this framework, an out-of-state physician may legally consult with an in-state treating physician about that physician’s patient. Most states recognize such exemptions, but the details vary. “It would behoove interested physicians to familiarize themselves with the requirements of any states pertaining to their particular situation,” Lacktman advises.

Physicians providing VSOs should verify whether the state in which the patient resides permits peer-to-peer consults and under what conditions. Some states require mutual licensing or special telehealth registrations; others impose documentation or supervision mandates. By ensuring compliance, physicians can continue delivering valuable second-opinion services without exposing themselves to legal jeopardy.

As virtual second opinions become more prevalent, physicians must balance the promise of expanded patient access against the complexity of state licensure laws. Careful attention to the distinction between educational content and medical practice—as well as strategic use of peer-to-peer exemptions—will empower clinicians to deliver high-quality VSOs while safeguarding their professional standing.