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Telemedicine and telehealth litigation risk rises as demand soars


One of the biggest risks is the act of practicing medicine virtually and the challenges of virtual examinations, reviewing diagnostics, communicating with the patient, loss of contextual clues, etc.

Telemedicine and Telehealth (T&T) services were already on the rise before the COVID-19 pandemic, and demand has soared since the shutdown as patients and providers alike recognized the efficiencies and convenience of delivering care remotely.

Some of the increase in demand is due to plain old necessity among populations who couldn’t easily attend appointments in person. People with mobility challenges, who were under quarantine because of possible COVID-19 exposure, who have underlying health issues that put them at higher risk for serious complications from COVID-19, or whose family demands and virtual school responsibilities made in-person appointments difficult have been able to still receive clinical care through telemedicine appointments.

Patients seeking care for routine health visits also embraced the ease of meeting with a doctor via videoconference, while others managing chronic conditions such as diabetes or high blood pressure saw the convenience of doing regular check-ins remotely.

Telehealth also rose in popularity as providers turned to virtual platforms for patient monitoring, education, biohealth screenings, and other wellness offerings.

Along with the surge in demand for T&T care also comes higher risk of malpractice claims for health care professionals.

Misdiagnosis Risk

One of the biggest risks is the act of practicing medicine virtually and the challenges of virtual examinations, reviewing diagnostics, communicating with the patient, loss of contextual clues, etc.

Two-thirds of telemedicine-related claims received between 2014-2018 were related to diagnosis, according to CRICO.

Unlike an in-person clinical visit, physicians conducting a telemedicine appointment must rely on a patient’s description and interpretation of their symptoms to try to make a diagnosis without the benefit of testing and hands-on physical examination.

That could more easily lead to misdiagnosis, missed symptoms or physical clues about the patient’s condition, prescription of the wrong medication, and the potential consequence of prescribing medication across state lines without conducting an in-person examination (a criminal offense in some states).

Security & IT Concerns

There are also technology risks.

Privacy breaches, software malfunctions, cyber security threats, ransomware, and other issues could result in noncompliance with federal and state regulations.

Something as simple as a poor internet connection or an older computer with a low-quality camera lens could also play a role in misdiagnosis or miscommunication between patient and provider.

How to Mitigate Risk

Despite these risks, the standard of care test remains the same for virtual medicine: acceptable medical treatment provided by reasonably prudent health care professionals under like or similar circumstances.

Providers who choose to offer T&T care can reduce their risk by implementing best practices and recommendations from the American Telemedicine Association, and working with attorneys who are experienced in medical malpractice defense to develop policies and procedures for following those guidelines.

They should be vigilant about patient confidentiality, including written documentation, and ensure their software platforms have encryption, cybersecurity, and other safeguards that comply with federal and state privacy laws such as HIPAA and HITECH.

Providers should educate patients on the proper protocols of T&T visits and describe the possible risks of seeking care remotely. They also need to be mindful that there will be an inherent lack of personal connection and continuity of care that tends to reduce the risk of litigation in longstanding doctor-patient relationships.

Physicians may need to be more vigilant in making sure patients follow through on diagnostic testing such as blood work or radiology, prescription medications, other recommended treatment or specialized care.

When In Doubt, Insist on an In-Person Visit

Most importantly, when a virtual visit isn’t yielding enough information — especially when the patient may have a serious illness or condition, or a history of underlying health issues that may cause complications — physicians should document the lack of information and insist on an in-person appointment for a more detailed examination or diagnosis.

Telemedicine offers many new opportunities and potential benefits for both patients and physicians in our increasingly complex health care environment.

Medical providers must stay alert to the possible risks of litigation, especially when making a new diagnosis or when presented with a new symptom or health concern.

Work with experienced medical malpractice counsel to create policies and procedures that adhere to guidelines from the American Telemedicine Association, and vigilantly follow best practices.

Remember that T&T care is still in its infancy, and we have much to learn.

About the Author
James R. Embrey, Jr. is a Partner at Hall Booth Smith, P.C., and he defends Fortune 500 companies and other businesses of all sizes in medical malpractice litigation, general liability, insurance coverage and transportation matters. He previously worked in-house as a Managing Counsel and General Counsel, and earlier in his career he served as an Airborne Infantryman in the United States Army with the 101st Airborne Division (Air Assault) and was awarded the Combat Infantryman’s Badge for his service in the Middle East.
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