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Telemedicine: Musings From Medical Malpractice Defense Attorneys

Although telehealth can open effective avenues of care for patients who cannot see physicians in person, factors such as a lack of personal connection or lack of continuity of care can leave physicians vulnerable to malpractice suits when things go awry. These authors offer pointers for avoiding lawsuits.

Over the past decade video conferencing technology has become commonplace in society, both in the personal and professional setting. Given the availability of video conferencing technology in computers and cellphones, the ubiquity of this technology has shaped how people meet and work in a professional setting. It has also impacted how people see their doctors and health professionals.  

Telemedicine has been in existence in various forms for several decades, depending upon the definition of the term, beginning with radiologists diagnosing remote patients. Telehealth is now a common way for patients to see their doctors, especially for routine visits. Over the last decade this trend has increased. Due to the COVID-19 pandemic people’s fear of going to a physician’s office, accompanied by local “stay at home” orders, has resulted in a need for patients to see their physicians without being in the same room. An obvious solution to this problem is telehealth.  

It is important to note that most of the same legal pitfalls of a clinical practice are also present in a telehealth practice, including the need for careful compliance with both federal and state regulations. It is important to note that the pandemic resulted in changes to telehealth regulations and reimbursement from insurance companies at both the state and local level. Due to the regional nature of the applicable laws, we will not attempt to address the diverse array of legislation in this brief article. However, physicians utilizing telehealth systems should educate themselves on all applicable regulations in their locality.

Telehealth is a relatively new phenomenon, and malpractice litigation in this area is in its infancy. This article will present our thoughts on some of the legal implications of telehealth and how to minimize the potential risk of litigation. The pivot to telehealth has naturally shifted the nature of the patient-physician relationship. Whereas in the past telehealth could be used as a supplementary tool between a physician and a pre-existing patient, now via telehealth physicians are seeing patients they have never physically met. In many ways the physical and emotional disconnect from hands on patient care increases the potential risk of litigation; however, there are some advantages that may act to actually deter lawsuits.

Lack of Personal Connection

People are generally less likely to sue someone with whom they have a pre-existing professional relationship, especially when they like that individual. Simply put, a poor result, or even an honest mistake in professional judgment, that would likely be excused by a long-term patient, may form the basis for litigation with a telehealth patient.

In the past, patients would choose their healthcare provider based upon their personal preference and that relationship could then continue for years. With the current insurance environment, patients see physicians who accept their insurance, and when they change insurance, they may be required to change physicians. This makes it difficult for patients to form a long-term bond with their physician.  

Any existing lack of connection between patients and physicians is further exacerbated by telehealth. With telemedicine, patients may seek care from a physician they may have never met before. The patient may even reside in a different city or state, which may have very different attitudes toward litigation. Patients do not form the same bond over telemedicine and may even consider the health care provider as more of a professional service than as an individual. This is especially true when the healthcare provider is providing treatment through a corporate portal rather than a local clinic where the patient has the opportunity to physically see the same provider in the future. Should there be a complication or a poor outcome, the patient is less likely to hesitate in considering filing suit where there is little relationship, or even the potential for one, with the health care provider.  

A lack of connection is an unfortunate trend in medicine for which there is no easy solution. However, the practice of good communication skills is just as beneficial in telemedicine as it is with a clinic-based practice. With telemedicine there is the potential for the appearance of detachment from the patient. Thus, it is important to make eye contact and allow patients to discuss their medical issues thoroughly. Patients will expect the same level of empathy, understanding, and communication regardless of the nature of the platform in which care is administered.  

Lack of Continuity of Care

Telehealth was originally intended as a supplementary tool in a preexisting physician/patient relationship. Telemedicine poses potential problems when a patient is meeting their physician for the first and maybe only one time through a virtual visit.

In addition to the lack of a relationship, with telemedicine there may also be a lack of continuity of care. If a physician is meeting a patient through telehealth for the first time it is unlikely the physician will have a full understanding of the patient’s medical history, temperament, family history, likes and dislikes, profession, family situation, housing situation, etc. All these personal details are difficult to learn in one visit with a patient, but they can be vitally important to providing effective care.

The disposable nature of a telehealth appointment does not lend itself to a long-term bond between patient and physician, and the patient’s health care can suffer as a result.

Choosing the Right Tool for the Job

Telehealth is a valuable tool in the toolkit of a physician, but it is not a “one-size-fits-all” option. Physicians should consider the limitations of telehealth versus in person visits when deciding how to best see patients. When using telehealth, the physician must often rely on a patient’s interpretation of their symptoms. This information may be influenced by the patient’s perception of their condition or even by a desire for secondary gain, such as drug-seeking behavior. The physician must also consider that certain tests or physical examinations are not available during telehealth appointments. Thus, telehealth is often best used for simple ailments or to augment in person visits. For a follow-up visit or discussion of test results, a telehealth visit is generally a perfectly adequate option.  

The potential for malpractice is increased when a provider attempts to stretch the limits of telehealth technology. It is important that the health care provider triage the patient to make sure that telemedicine is the appropriate tool for the patient’s medical condition. If a physician would feel comfortable diagnosing a patient based solely on self-reported symptoms and basic vitals during a normal office visit, then that patient may be well suited to a telehealth visit. However, if a diagnosis requires physical examination, lab testing, or other actions that are not practical for telehealth, a physician should not attempt to rely solely on the self-report of a patient as a basis for a diagnosis that requires additional findings. Further, if the medical condition is potentially unstable or life threating then telemedicine should only be used as a last resort with a prompt follow-up.  

We are aware of unfortunate cases in which telemedicine physicians misdiagnosed common, but potentially fatal, conditions such as an appendicitis due to the inability to perform a physical examination. Further, we have seen medical generalists who attempted to diagnose or treat specialized surgical complications via telemedicine with very unfortunate outcomes. Patients with potentially serious conditions or ailments outside the field of the provider should be promptly referred for in-person treatment, specialist evaluation or to their local emergency room or urgent care clinic, as appropriate.

Informed Consent With Telehealth

As important as it is for a physician to understand the limitations of telehealth, it is equally important for their patients to understand limitations as well. Physicians should make it clear to their patients that telehealth can be used in a limited number of circumstances as it limits the ability of a physician to fully examine the patient. Appropriately setting a patient’s expectations is a good way to avoid a malpractice lawsuit. If patients expect too much from a physician, they will be let down when their expectations are not met, and that disappointment can lead to a lawsuit. When patients are well informed about the limitations of telehealth, they will be less likely to expect a physician to provide the exact same services to them in a virtual setting as they could at an in-person office visit.

The patient’s thoughts on the need for a physical visit may also provide some insight into the subjective seriousness of the complaint. A discussion of the availability, or even a need, for a subsequent follow-up physical visit may also be appropriate. Further, documentation of these discussions and recommendations could be key in deterring an attorney from agreeing to file suit on behalf of the patient.  

A Closer Look at an Evolving Standard of Care

For a plaintiff to make a case for medical malpractice, he or she must prove a physician breached the standard of care. The standard of care is not a rigid rule that can be applied in every situation. Instead, it is flexible, changing, and highly fact specific. The exact definition depends upon the venue, but the standard of care is what a reasonable physician of similar education, training, and experience would have done in the same or similar circumstances. This means the standard of care could be different for an in-person office visit as opposed to a telehealth visit. However, it is anticipated that a plaintiff attorney will argue both standards of care should be the same.

Since telemedicine has not been widely accepted in the medical industry until relatively recently, the standard of care for telehealth visits is rapidly evolving. The industry will need to establish standards, practices, and norms for telehealth, which will in turn inform the standard of care as it is applied in legal cases.  

Positive Impacts of Telehealth on Malpractice Litigation

While the misuse or misapplication of telehealth could potentially expose a provider to claims of malpractice, the technology also provides ways to prevent or defend against malpractice claims. Many telehealth systems provide the ability to record visits with a patient. While the feature is not always necessary, and may be intrusive in many circumstances, there are instances when, with the consent of the patient, it is a good practice to utilize such a feature.

For instance, telehealth is well suited for the immediate preoperative visits between a surgeon and a patient. Assuming prior examination and testing, these visits are generally a discussion of surgery and potential complications. Physicians can utilize the recording feature of telehealth to save the discussion of informed consent for the surgery to the patient’s electronic medical record. By having the discussion saved as a video, if patients claim they did not know the risks of a particular procedure, the physician has concrete evidence to dispute this assertion.  

Conclusion

This new technology is rapidly evolving, as is the standard of care applied to the usage of telemedicine. We anticipate an increase in litigation stemming from telehealth due to both its rise in usage and the impersonal nature of the platform. Physicians should be cautious of the limitations of the technology, keep their patients informed, and document well. There are many advantages to telehealth due to its inherent convenience and ability to record segments of the discussions. The rapid rate of adoption of telehealth is likely to continue and in turn it will spawn its own body of law.

Don Stephens is an attorney at Stephens & Associates in Pearland, Texas. He has a broad base of legal experience and who has represented hundreds of physicians and other healthcare providers across the state of Texas. He primarily focuses on defense of medical malpractice allegations, but also handles a variety of healthcare issues. He may be reached at dss@dstephenslaw.com

Justin Rightmer is an Associate Attorney at Stephens & Associates. He has an interest in health care law, and has experience in general commercial litigation and transactional law including contract enforcement, trade secret disputes, and estate planning.

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Donald Stephens and Justin Rightmer
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