How Telemedicine Raises New Malpractice Risks in Remote Care
As telemedicine becomes more widespread and establishes itself as a permanent method of healthcare delivery, patients and providers must understand its implications. Telemedicine introduces new challenges in healthcare.
While virtual doctor visits offer the benefits of convenience and broader access, they also expose practitioners to greater legal risk. Ohio medical malpractice lawyers have been playing a key role in interpreting how traditional malpractice laws apply to this type of care. Patients in Ohio should be aware of how telemedicine raises new medical malpractice risks in remote care.
What is telemedicine?
Telemedicine is healthcare delivered through digital technology instead of in person. Examples of common technologies include video visits, remote monitoring, and adapting diagnostic tools to virtual formats. Telemedicine may even encompass asynchronous data exchange from wearable devices and mobile phone apps that gather and transmit patient data in real time.
Ohio Revised Code § 4743.09 governs telehealth. The Code states that if a patient consents to telehealth services, the healthcare professional providing those services can’t be held liable solely because the care differs from in-person standards. Additionally, Ohio’s Administrative Code outlines the requirements for conducting telehealth appointments. It also prohibits professionals from practicing outside of their licensed scope.
Even still, the above-mentioned legislative protections don’t eliminate the gaps or uncertainties that raise malpractice risk.
Malpractice risks unique to telemedicine
There are several significant areas where telehealth raises new legal exposure.
Incomplete or incorrect evaluation and diagnosis
Providers have to rely on self-reported symptoms, video cues, and remote medical records to figure out what’s wrong with patients without seeing them in person. Not having face-to-face interaction can lead to misdiagnosis, delays, or failure to identify red flags.
Gathering patient history, verifying identity, and being unable to observe subtle clinical signs are common risks associated with this process.
For example, suppose a dermatologist relies on poor image quality to make a diagnosis of skin cancer. If they incorrectly assess the lesion and it turns out to be early melanoma, treatment would be delayed, resulting in possibly severe outcomes for the patient.
Technical failures and communication errors
Even with the many technological advances, dropped calls, poor video quality, or unstable connections are still relatively common in telehealth visits. If a clinician continues to provide care without addressing these gaps, they put themselves at risk of liability.
Poor documentation can make matters worse. If a virtual visit isn’t well-documented in terms of what was observed or shared, it can be hard to demonstrate that the appropriate standard of care was met. Detailed documentation is essential in any medical practice, but it is particularly critical in telehealth.
Inadequate informed consent and patient selection
Providers must educate patients on what telemedicine can and can’t do. Otherwise known as informed consent, patients ought to understand the limitations, risks, and when in-person care is necessary. Failing to properly notify patients may weaken a healthcare professional’s legal defenses.
Not all conditions are appropriate for virtual care; some necessitate an in-person evaluation. If a provider takes on a case that needs to be handled in person, they could be deemed negligent.
Cross-state licensure and standard of care conflicts
Telemedicine reaches a large number of people and transcends borders. Because care is rendered where the patient is located, an Ohio provider seeing a patient in Kentucky generally must be licensed or otherwise authorized in Kentucky, and comply with Kentucky law/standards. Practicing in multiple places across jurisdictions may create conflicts, leading to medical malpractice exposure.
If more than one provider or system is involved, shared liability may arise, meaning that various parties may be responsible as each contributed to the injury. Integrated health systems and telehealth partnerships can muddy the determination of who will ultimately be held accountable.
Privacy, data security, and HIPAA risks
Telehealth increases the risk of data breaches and data privacy violations. To help mitigate these occurrences, providers should ensure their platforms are secured to prevent unauthorized access and safeguard sensitive personal data. Platforms can be secured through encryption, access controls, and reliable backups. Otherwise, providers can be exposed to HIPAA and HITECH penalties and tort claims (arising from data breaches).
It’s important to document these protections. Defending a medical malpractice claim without proof of protection or inadequate documentation can be difficult.
Mitigating malpractice risks in telemedicine
There are ways for providers to decrease the exposure stemming from telehealth.
Use strict triage and case selection
Healthcare professionals are advised to handle cases that are appropriate for virtual care. Patients with complicated or high-risk symptoms may need to be referred for in-person care. In the event a patient is recommended for a physical assessment, the provider is encouraged to thoroughly document their rationale.
Obtain specialized telehealth-informed consent
In providing notice to patients, it can help to clearly state telemedicine’s limitations, potential technical issues, and when and how to escalate problems. Ideally, patient acknowledgement is required and recorded.
Maintain documentation
All communications, shared data, instructions, follow-ups, and consent are best documented and properly maintained. Without a strong paper trail, healthcare providers may have difficulty defending their stance.
Establish a clear escalation or referral protocol
When a patient’s symptoms are concerning, care is ideally escalated immediately. Delays in directing patients to in-person care are a common basis for malpractice claims.
Maintain a license to practice and stay current with Ohio laws
Ohio healthcare providers are required to follow ORC § 4743.09 and associated administrative rules. When treating out-of-state patients, providers must also comply with the licensure and standard of care requirements in those states. Since telemedicine liability protections evolve with the law, it’s critical that medical professionals stay current with legal developments.
Why should patients care?
A misdiagnosis, delayed care, data breach, or lack of escalation can put you and your family in an exceptionally vulnerable situation. If you’ve been harmed, you may have a claim for medical malpractice against your healthcare provider and/or their institution. However, determining who is responsible and how much compensation you’re entitled to can be difficult.
Call an Ohio medical malpractice lawyer
Virtual care demands reviews of logs, technical standards, and changing definitions of duty. Legal counsel can coordinate:
- Investigation into telehealth requirements
- Examination of whether the provider met them
- Safekeeping of evidence
- Potential navigation of multi-state issues
- Evaluation of whether consent and documentation are sufficient
There are many layers to a medical malpractice case rooted in telemedicine, and you don’t have to handle them alone.
Contact Crandall & Pera Law now for a consultation if you think negligent telemedicine care hurt you or someone you love. Our team of Ohio medical malpractice lawyers understands the legal landscape of remote care and is experienced in helping protect patients’ rights.