The Growth of Telemedicine: Advantages and Dangers

Telemedicine uses technology to deliver medical care from a healthcare provider to a patient in a different location. While telemedicine services are not necessarily new in healthcare, their use has suddenly expanded with the Covid-19 pandemic.

Telemedicine was already growing in popularity before the Covid-19 pandemic. By 2018, the American Medical Association said more than 25% of U.S. physicians worked in a practice that used telemedicine. But, pandemic-related changes gave telemedicine a big boost. Most significantly, the percentage of medical practices using video conferencing with patients increased from 14.3% in 2018 to 70.3% in 2020.

One study of the use of telemedicine visits versus in-person appointments during the last three months before the pandemic and the first three months of the pandemic showed that after mid-March 2020:

• Young adults were more than 22 times as likely to use telemedicine after the pandemic started than they had been previously
• Children and teens were more than 58 times as likely to use telemedicine after mid-March 2020
• People aged 65 and older were 237 times as likely to rely on telemedicine visits after the pandemic got underway

At Ohio State’s Wexner Medical Center, telemedicine visits jumped from 96 in February 2020 to 202,900 between March and July of the same year.
With an increase in this type of health care comes the risk of associated litigation. Medical providers must note that most of the same legal pitfalls of clinical practice are also present in a telemedicine practice, including the need for careful compliance with federal and state regulations. There have been relatively few medical malpractice claims associated with telemedicine visits, mainly because the most common contexts for medical malpractice claims are not addressed through telemedicine, such as surgical errors. However, some potential types of malpractice that can and do happen in telemedicine settings are misdiagnosis, failure to diagnose or delayed diagnosis, and prescription medication errors. When these and other errors occur due to a healthcare provider’s negligence, the injured patient’s rights and options are very much the same as if the negligence had happened in an in-person visit.

As important as it is for a physician to understand the limitations of telemedicine, it is equally important for their patients to understand their limitations. Physicians should make it clear to their patients that telemedicine can be used in a limited number of circumstances as it limits the ability of a physician to examine the patient physically. 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 telemedicine, they will be less likely to expect a physician to provide the same services to them in a virtual setting as they could at an in-person office visit.

For a plaintiff to make a case for medical malpractice, they must prove that a physician breached the standard of care. A common definition of 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 differ for an in-person office visit versus a telemedicine visit. However, it is anticipated that plaintiff attorneys will argue that both standards of care should be the same.

This new technology, as is the standard of care applied to telemedicine, is rapidly evolving. It is anticipated that there will be an increase in litigation stemming from telemedicine due to 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 telemedicine due to its inherent convenience and ability to record segments of the discussions. The rapid rate of adoption of telemedicine is likely to continue, and in turn, it will produce its own body of law.

At Med Law Advisory Partners, we evaluate medical malpractice claims and assist our clients by completing thorough medical record reviews and analyses for breaches in standards of care. Let us help you not only when litigation arises but let us help you identify potential issues upstream to avoid litigation downstream.