Medical Malpractice: Telemedicine

mobile phone with doctor on screen for telemedicine consult, potential for medical malpractice liability.

Telemedincine: Medical Malpratice Liability vs Benefit

The year 2020 saw unprecedented growth in the utilization of Telemedicine due to the Covid-19 worldwide pandemic. Around 42% of Americans state they have used a Telemedicine video consult during the pandemic, according to a current poll1.

Telemedicine growth persists at a remarkable rate as an increasing number of licensed physicians offer it in their services.

Telemedicine boosted nationally 1,019% from 2014 to 2019, a higher proportion of expansion than in the 2013-2018 time period, which reported a 785% increase.

The rural growth in normalized Telemedicine claim lines from 2014 to 2019 was 287% and the urban surge of 1,112%2. The speed, quality, and convenience factors for providing virtual care to clients keep advancing.

DISCLAIMER: Dr. Dalawari shares interesting and relevant medical-legal news in the press. He also shares case verdicts & settlements from the public record. He has no professional or personal relationship to the cases.

Keywords

Medical Malpractice, Liability, Telemedicine, Telehealth, Pandemic, Licensed Physician, Virtual Care, Expert Witness, Medical Expert Witness

At a glance

Intro:

The exponential growth of telemedicine raises important questions not only about the quality of care, but also how the practice of telemedicine will impact medical malpractice and liability issues.

Discussion:

  • Medical Malpractice: Liability in Telemedicine
  • Medical Malpratice Liability vs Benefit
  • Telemedicine vs Telehealth
  • Telemedicine Risk and Liability
  • Malpractice and Liability Cases with Telemedicine
  • Telemedicine Adverse Event Solutions

Conclusion: As technology gets less expensive and high speed internet become a reality in rural and urban settings. Physicians and patients must balance the risks and benefits of using Telemedicine for medical consultations.

As the number of Telemedicine consults increases in the future, so will the frequency of medical malpractice incidences grow as well. 

Telemedicine Medical & Legal Liability

However, with all the benefits that Telemedicine extends to both patients and practitioners, there may be numerous malpractice liability pitfalls to reflect on3.

 

Potential barriers encompass a plethora of state regulations concerning licensure, informed consent, compensation, and malpractice liability4.

 

Other Telemedicine concerns include patient confidentiality, credentialing, security, privacy, and an absence of personalized medicine leading to an incorrect diagnosis4.

 

All of these factors present challenges to licensed physicians and may hamper the future growth of Telemedicine.

  • Is Telemedicine worth its weight in gold after the expense of equipment, staff training, licensure requirements, decreased reimbursement, and potential legal liability?
  • Will Telemedicine continue to grow at double-digit rates in the post-Covid-19 era?
  • What are the long-term implications for patients who utilize Telemedicine on a yearly basis?

 

These are all important questions to consider when evaluating the risk-benefit ratio of Telemedicine. Each physician and hospital group must weigh the potential convenience of Telemedicine vs the short and long-term consequences for patients and for professional liability and malpractice risks.

Telemedicine vs Telehealth

In its statement on the ethics of Telemedicine, the World Medical Association defined Telemedicine as, “the practice of medicine over a distance, in which interventions, diagnoses, therapeutic decisions, and subsequent treatment recommendations are based on patient data, documents and other information transmitted through telecommunication systems.”5.

 

Telemedicine is the use of video conferencing technology to remotely deliver medical care. Therapeutic health guidance via Telemedicine can be between physician and patient or between two health care specialists5.

 

Telehealth, while comparable with Telemedicine, is more comprehensive and describes the application of data and telecommunications equipment, incorporating remote patient observation tools, to aid in remote medical consults, patient & practitioner health linked learning, community health, and medical management.

 

Telemedicine concentrates on the therapeutic facets of healthcare, whereas Telehealth aims at the promotional & preventative, and curative characteristics of healthcare delivery6.

Introduction of Telemedicine Risk & Liability

While the growth of Telemedicine continues in the United States and around the world, there are underlying inherent risks associated with Telemedicine.

 

Patients may not be aware of the risks of Telemedicine as they put their hope and trust in the medical services offered to them by the insurance provider or by the state or federal hospital-based system.

 

Telemedicine does have its place in the delivery of healthcare services, especially for patients who may not be mobile or live in a rural community. The mechanisms to achieve safe and quality care such as informed consent must be in place for these marginalized groups who lack timely access to physician specialists.

 

The following parameters should be reviewed with a patient during a Telemedicine consult7:

  1. Names and credentials of staff contributing
  2. The privilege to stop or refuse treatment by Telemedicine
  3. Technology that will be utilized
  4. Confidentiality and security threats
  5. Technology-related risks and permission to bill
  6. Substitute care in case of an emergency or technology failure
  7. Any state-explicit regulations

 

In spite of all the efforts of Telemedicine staff their expertise and training protocols, there are documented and published examples of malpractice claims leading to adverse events involving patients utilizing Telemedicine.

 

Covid-19 patients may be utilizing Telemedicine to get a diagnosis or medical advice on their current condition. There are a few scenarios for Covid-19 patients where the risk of a malpractice suit can be heightened8:

 

The negligent response of private and public health centers and to identify the coronavirus for patients in a timely manner.

 

Inattentive letdowns may cause the postponement of unconnected medical management actions that trigger injury to patients.

Malpractice & Liability Cases with Telemedicine

Across the United States, there are multiple cases of medical malpractice liability associated with Telemedicine.

 

For instance, in Arizona, it has been upheld that doctor evaluation of patient forms accepted via the world wide web was deficient to prescribe drugs and remedies without in-person checkups confirming the medical condition of patients9.

 

The ripple effect continued as a pharmacy contravened Arizona state law when it distributed drugs according to the prescription given by remote consultation9.

 

Telemedicine cultivates problems pertaining to a doctor’s state licensure, and a third party’s conceivable legal responsibility for receiving drug filling orders from a physician who lives in a different state10.

 

There are possible legal perils in detailing a video appointment in the same manner a physician would document an in-person appointment.

 

Mistakes can happen during a Telemedicine video consult by omission or comission11 and must be investigated thoroughly if any potential lawsuit is going to stand up in a court of law.

 

If the records expose a checkup that could not have been executed, an attorney can pursue legal action, which renders it extra challenging to uphold the medical care delivered7.

 

For example, if a patient complains of severe onset infirmity during a Telemedicine consult, the doctor may document the cardiac status as a steady speed & tempo, and muscle strength being uniformly bilaterally7.

 

Unbeknownst to the consulting physician, in the next 24 days, the patient presents with a stroke in the emergency room, and an electrocardiogram is ordered. The results of the EKG now reveal that the patient has atrial fibrillation.

 

The consulting physician now has to give an account for documenting that the patient had standard muscle strength and a typical heart rhythm during the Telemedicine consult the day prior7.

 

This scenario would represent potential malpractice on behalf of the consulting physician.

In a legal setting, an attorney would suggest that not sending the patient to an urgent care or emergency department was deemed as negligence.

 

The patient’s status for a possible stroke could have been diagnosed and treated, as an alternative to detailing remote consult exam conclusions that could not have been accomplished7.

Telemedicine Adverse Event Solutions

This type of scenario is not unrealistic, and a medical expert witness, such as a cardiologist, in this case, would lend creditability and bolster the chances of a successful legal challenge for the patient.

 

Physician expert witnesses can be consulted to give expert advice in medical malpractice litigation cases for patients. Attorneys can also retain medical practitioners to communicate the reality about the capabilities, aptitudes, and discernment obligatory to evaluate adverse Telemedicine health events.

Law firms can contract expert witness physicians who work in many specialties such as cardiology, radiology, neurology, and oncology.

A medical expert can also aid families who may have received harmful or suboptimal treatment to get the fair compensation they deserve.

In Conclusion

Telemedicine is here to stay as technology gets less expensive and high-speed internet becomes a reality in both rural and urban settings.

Physicians and patients must balance the risks and benefits of using Telemedicine for medical consultations.

As the number of Telemedicine consults increases in the future, so will the frequency of medical malpractice incidences grow as well.

The important point to remember is that patients are paying for and deserve the best possible treatment when using Telemedicine services.

 

If it is deemed that they have suffered an adverse event based on a failure in Telemedicine technology, protocols, or staff expertise, it is the patient’s right to pursue any legal action applicable to their situation.

DISCLAIMER:Dr. Dalawari shares interesting and relevant medical-legal news in the press. He also shares case verdicts & settlements from the public record. He has no professional or personal relationship to the cases.

Do you have questions about a medical case or need help understanding treatment plans and options?

Cardio Med Legal Dr. Jasdeep Dalawari

(804) 500-0685 - info@cardiomedlegal.com

References - Sub-Title (h3)

1. Guglielmo W. Telehealth brings malpractice risks, says report; more. https://www.medscape.com/viewarticle/938165. Published Sept 2020.

2. FH healthcare indicators and FH medical price index 2020. PRNewswire website. https://mma.prnewswire.com/media/1138640/FH_Healthcare_Indicators_and_FH_Medical_Price_Index_2020_A_FAIR_Health_White_Paper.pdf. Published March 2020.

3. Mohit J. Telehealth has huge potential, but challenges remain. Forbes website. https://www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2020/02/12/telehealth-has-huge-potential-but-challenges-remain/?sh=38ed2100191a . Published Feb 2020.

4. Norcal Group. Telemedicine offers advantages for practices, but liability risks remain. https://www.norcal-group.com/library/telemedicine-offers-advantages-for-practices-but-liability-risks-remain. Published July 2020.

5. WMA statement on the ethics of telemedicine. World Medical Association website. https://www.wma.net/policies-post/wma-statement-on-the-ethics-of-telemedicine/. Published Oct 2018.

6. Liability in the telehealth era. White and Williams LLP website. https://www.jdsupra.com/legalnews/liability-in-the-telehealth-era-65973/. Published June 2020.

7. Gallegos A. 3 malpractice risks of video visits. Medscape Medical News website. https://www.medscape.com/viewarticle/936664. Published Sept 2020.

8. Shute D. COVID-19: malpractice risks when treating patients. Medscape Medical News website. https://www.medscape.com/viewarticle/929635. Published April 2020.

9. Low Cost Pharm., Inc. v. Ariz. State Bd. of Pharm., No. 1-CA-CV 07-0547, 2008 Ariz. App. Unpub. LEXIS 790 (Ariz. Ct. App. May 20, 2008).

10. Frazier v. Univ. of Miss. Med. Ctr., 2018 U.S. Dist. LEXIS 182205. https://casetext.com/case/frazier-v-univ-of-miss-med-ctr-2

11. White F, Nanan D. Clinical decision making Part I: errors of commission and omission. J Pak Med Assoc. 2003 Apr;53(4):157-9. PMID: 12776901. https://pubmed.ncbi.nlm.nih.gov/12776901/

About Jasdeep Dalawari MD

Experienced General and Specialist Physician with a demonstrated history of working in the medical practice industry. Skilled in Interventional, Endovascular, Vascular, and General Cardiovascular Medicine; Emergency Medicine; Healthcare Consulting, including Peer Review, Expert Witness, and Utilization Review; and Medical Education. Strong healthcare services professional with an MS focused in Health Administration from Virginia Commonwealth University.