Loosening federal restrictions and the pandemic have led to the rapid surge in telehealth. While this has allowed safe and convenient access to health care, telemedicine also poses medical malpractice risks.
Practitioners must comply with certain standards based on their patient’s health and condition. In medicine, these standards are recognized as being acceptable medical treatment provided by doctors under similar circumstances.
A practitioner engages in malpractice by failing to meet the standard of care owed to their patient and harms the patient. Practitioners owe a duty to patients to protect against any malpractice in their office or through a telephone or web platform.
Telemedicine has unique risks because practitioners rely on data, documents and other information supplied by patients. In telehealth visits, practitioners may be held liable for breaching their standard of care through their negligent act or omission, miscommunication, misdiagnosis, software malfunction, or other technological risk that threatens patient safety.
Patient harm must be proven. It usually includes disability, income loss, unusual pain, suffering and hardship, or substantial medical costs.
Misdiagnosis and miscommunication
Examinations through digital health platforms can be more difficult than an in-person office visit. The inability to conduct a physical patient examination may lead to a misdiagnosis or improper medication prescription. From 2014 through 2018, according to the CRICO professional carrier, 66 percent of telemedicine claims involved a diagnosis.
In-person communication has advantages over telecommunications and telephone conversations. Ineffective communications may prevent the establishment of an appropriate doctor-patient relationship and obtaining an appropriate assessment of the patient’s condition and a detailed medical history.
Technological software limitations and glitches in internet servers may cause diagnostic errors which occur because of the nature of technological platforms. Practitioners can face legal liability even if they did not display failed medical judgment.
Providers cannot assure compliance with federal privacy and security rules. Health Insurance Portability and Accountability Act requirements were temporarily loosened during the pandemic. This allowed doctors to communicate with patients on various commercial video-conferencing platforms.
These telehealth platforms have a greater risk for data breaches of protected patient information because some apps may not meet typical HIPAA requirements. Phishing and ransomware issues also rose 350 percent during the pandemic.
Practitioners must comply with Florida’s telehealth laws. Doctors should educate their patients on what in telehealth and obtain informed consent concerning any possible risks and security measures.
Doctors must accurately document visits and keep proper patient records. Record documentation helps assure patient confidentiality and that standards of care were met.
Attorneys can help victims seek evidence in a traditional or telemedicine malpractice case. Lawyers can pursue this right in settlement negotiations and legal proceedings.