Telemedicine was once only a niche service, but it has now grown to be an integral part of the healthcare system. A significant source of this growth occurred during the COVID-19 pandemic, which helped propel telehealth visits by 766% within the first three months of the pandemic.
While telemedicine provides a convenient option for patients who cannot complete an in-person visit, it comes with certain risks. As telemedicine is a relatively recent technological development, practitioners are just realizing certain legal challenges in virtual healthcare. Here is what you need to know about this emerging area of law and medicine.
What Is Telemedicine?
Telemedicine uses technology to deliver medical services. Healthcare providers may use various forms of technology to interact with their patients, including phone conversations, video calls, and messaging platforms to conduct medical consultations and share health information.
Types of Medical Care Provided Through Telemedicine
Telemedicine may encompass various modalities, including:
Virtual Consultations
Virtual consultations mimic in-person visits but involve healthcare providers and patients in different locations. Telemedicine providers may use video calls to see the patient. This allows them to observe the patient, even though they cannot touch them.
A telemedicine consultation may help with routine healthcare tasks, such as:
- Diagnosing common conditions, such as a cold or sinus infection
- Examining skin problems
- Managing prescription medications
- Providing results from a diagnostic test
- Following up after an in-person visit
Remote Patient Monitoring
Remote patient monitoring uses various technological tools to track a patient’s vital signs and health status even when the patient is not in the medical facility. This can be a helpful way to monitor information such as the patient’s:
- Heart rate
- Blood pressure
- Glucose levels
- Sleep patterns
- Breathing rates
Tele-Surgery
One of the most advanced forms of telemedicine is tele-surgery, which allows surgeons to perform certain medical procedures remotely by using high-definition video streams and robot systems.
Legal Challenges in Telemedicine
The recent rise in telemedicine has highlighted potential legal challenges. Some emerging virtual healthcare legal issues include:
Medical Licensing
Healthcare providers must be licensed in the same state where they practice medicine. They are subject to the medical board and licensing requirements in their state. However, some medical providers are licensed in multiple states. Doctors who accept telehealth visits with someone in another state can result in potential legal issues and disciplinary problems.
Medication Prescriptions
Special rules surround the prescribing of medications, including the Ryan Haight Act. This law generally prohibits prescribing medication to a patient online without first conducting an in-person visit. However, there are exceptions, such as if the medical provider is engaged in the practice of telemedicine and emergency flexibilities that were established during the COVID-19 pandemic that extend until December 31, 2024, that allowed medical providers to:
- Prescribe schedule II-V controlled substances without a previous in-person examination as they deemed clinically appropriate and within their normal scope practice
- Prescribe a controlled substance in one state if they have registered with the DEA in another state
In addition to these federal regulations, medical professionals must also abide by state laws regarding prescribing medications as part of a telehealth practice.
Patient Privacy
Another legal challenge associated with providing telehealth services to patients is ensuring that the patient’s privacy is protected. Healthcare professionals must comply with the privacy standards established in the Health Insurance Portability and Accountability Act (HIPAA). This includes safeguarding patient information with secure and encrypted communication and safely storing patient data to prevent breaches and unauthorized access.
Cybersecurity
Patients and medical professionals alike must safely guard their security during telehealth visits. Other people could be listening in on these visits and trying to steal sensitive information or extort a medical practice.
Telehealth Malpractice Risks
Another major legal concern in the realm of telehealth is the potential for medical malpractice. When doctors and other medical professionals cannot observe patients in person or conduct physical exams, they may make mistakes or miss symptoms that could alert them to more significant medical problems.
A national survey of older adults who had a telehealth visit between March and June 2020 found that 67% of the individuals polled felt that telehealth visits did not provide as high of quality of care as traditional in-person visits. In 75% of the telehealth visits, the older adults reported healthcare providers were unable to conduct physical examinations.
The exclusive use of telemedicine may increase the risk of potential medical errors, such as:
Failure to Diagnose
When healthcare professionals can only see patients virtually and cannot conduct physical exams, they have limited information available to help them diagnose a patient. The medical provider must rely solely on the patient’s account of symptoms and other information. This communication can be further hindered by technological difficulties, which can lead to healthcare providers making diagnostic errors, including failing to diagnose a patient with the ailment they have.
Misdiagnosis
A misdiagnosis occurs when a healthcare provider diagnoses a patient with a condition they do not have rather than the one they do have. A US-based professional liability provider analyzed telemedicine-related legal claims made between the years 2014 and 2018 and found that two-thirds of these claims were related to misdiagnosis.
In traditional healthcare settings, doctors and other medical providers can rely on physical exams, imaging tests, blood work, and other diagnostic tools to help determine the patient’s condition. These tools are not available in a virtual setting, which can lead to misinterpretations of symptoms and the wrong diagnosis.
Delayed Diagnosis
Telemedicine can also result in a patient’s delayed diagnosis. A patient may schedule a telehealth visit, get a clean bill of health, and continue about their life. All this time, they could be suffering from a serious medical condition that requires immediate medical intervention.
Doctors may have a preconceived notion that telehealth visits are not as important or urgent, subconsciously affecting the doctor’s determination of the patient’s medical condition. Telehealth consultation recommendations may be to monitor symptoms or go for a follow-up visit in a few weeks, rather than taking immediate steps or referring the patient to a specialist. Delays in treatment can potentially have severe consequences for patient outcomes.
Failure to Follow Up
Medical providers may not follow up with virtual patients as frequently as they might with
Communication Errors
Virtual care can be less effective when there are communication errors. In the national survey of older adults who reported their impressions of telehealth visits, 25% reported they could not properly see or hear their healthcare providers. These communication errors can lead to diagnostic errors or the medical provider’s failure to recognize an emergency situation.
Medical Record Errors
It can be challenging for many medical providers to manage the technology related to telehealth while also creating medical records that can reasonably be relied on. Many doctors’ offices outsource transcription tasks to non-medical professionals, which can introduce errors in medical records. When medical records are not accurate, various problems can arise, such as:
- Incorrect dosages of medications
- Incorrect medications being prescribed
- Missing information about medical history, family history, treatments, and symptoms
- Missing medications that could indicate a possible adverse reaction with a subsequently prescribed
Imaging Misinterpretation Errors
Medical providers often rely on imaging results to diagnose a patient. If a radiologist misinterprets a critical imaging test result from an X-ray, CT scan, MRI, or ultrasound, the medical provider could relay incorrect information to the patient, potentially leading to a failure to diagnose or a delayed diagnosis.
Technology Glitches
Telehealth is at the mercy of technology’s ability to connect with patients. If any of these technological systems fail, the patient and medical provider may be unable to see, hear, or communicate. Calls can get dropped, and it can be difficult to reconnect with the healthcare provider. Files can be corrupted, losing critical information, potentially leading to patient harm or delays in treatment.
When Telemedicine Errors Might Be Medical Malpractice
All medical providers are required to provide patients with a level of care that meets or exceeds the accepted standard of care. This standard is the same standard another medical professional in the same specialty with similar experience would provide under similar circumstances. This standard must still be met even when a medical provider uses telehealth to deliver medical services. Therefore, medical providers must provide care that is at least as good as the care they would provide in a traditional, in-person setting.
A telemedicine error can be considered medical malpractice when it involves the following legal elements:
- A doctor/patient relationship exists.
- The doctor deviated from the accepted standard of care.
- The deviation from the standard of care harmed the patient.
- The patient suffered damages.
Telemedicine malpractice cases can be complex. The best way to determine whether you have a viable claim is to reach out to an experienced medical malpractice lawyer for a confidential case review.
Who Is Responsible for My Injuries?
If you believe that a medical provider may have made an error in your care, you may be able to recover compensation from the party responsible for the harm. Telemedicine liability may extend to:
- Primary care physicians
- Specialists
- Hospitals
- Radiologists
- Surgeons
- Lab technicians
- Medical practices
Experienced medical malpractice attorneys can thoroughly investigate claims to uncover evidence and identify the party responsible for a patient’s injuries.
Compensation Recoverable in Medical Malpractice Cases
If you can prove that your medical provider’s mistake constitutes medical malpractice, you may be able to recover economic and non-economic damages, such as:
- Medical expenses you incur to treat the issues caused by the failed diagnosis, misdiagnosis, or delayed diagnosis
- Continuing medical treatment
- Costs of medications and medical devices
- Reasonably anticipated future medical expenses
- Lost wages while you were recovering from your injuries or seeking medical treatment
- Loss of earning capacity
- Pain and suffering
- Disfigurement or scarring
- Physical impairments or disabilities
- Loss of enjoyment of life
There is a limited time to file medical malpractice lawsuits, so you must take prompt action to preserve your rights.
What to Do If You Suspect Telemedicine Malpractice
If you are concerned that your medical provider has harmed you while providing telehealth services, here are steps you can take to protect your legal rights and health:
Gather Information
The first step is to collect all your medical records and other information related to the botched telehealth services. Assemble the following information:
- Medical records
- Doctor’s notes
- Communications with your provider
- Prescriptions
- Treatment plans
- Lab results
- Imaging tests
When you request your medical records, you do not need to accuse your provider of making a mistake. This may make them defensive or put them on alert that you plan on taking legal action.
Seek Medical Treatment
Seek a second opinion from a different healthcare provider. Your health is the most critical priority, and you may have already been adversely affected by delays or mistakes. Explain your concerns about your treatment with your new provider. Keep all of your communications and records with your new provider, too.
Consult an Attorney
Our medical malpractice lawyers offer a free case review where you can learn about your legal options for recovering compensation after being harmed by a negligent healthcare provider. We can assess the facts of your case, identify all potentially at-fault parties, and represent your legal interests while you focus on your recovery.
Contact an Experienced Medical Malpractice Lawyer for a Free Case Review
If you suffered injuries that you attribute to negligent medical care delivered during a virtual visit, you must speak with an experienced medical malpractice attorney about your concerns. The laws surrounding telehealth services are constantly evolving. You need a lawyer who is familiar with these changes and knows how to aggressively demand the compensation you deserve.
Our experienced legal team can review your claim and explain your legal rights for pursuing compensation for the harm you have experienced. Contact us online or call us at (518) 720-6188 for your free consultation.
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