How physicians can protect themselves from litigation risk from virtual care

Telemedicine and telehealth services were growing before the COVID-19 pandemic, and demand has soared since the March 2020 shutdown as patients and providers alike recognized the efficiencies and convenience of delivering care remotely. However, along with the surge in demand for virtual care comes higher risk of malpractice claims for health care professionals.

Misdiagnosis risk

One of the biggest risks in the act of practicing medicine virtually involves the challenges of virtual examinations: reviewing diagnostics, communicating with the patient and loss of contextual clues, among other factors.

Two-thirds of telemedicine-related claims received between 2014 to 2018 were related to diagnosis, according to CRICO, the risk management arm of the Harvard Medical Institutions.

Physicians conducting a telemedicine appointment must rely on a patient’s description and interpretation of their symptoms to try to make a diagnosis without the benefit of testing and physical examination, as at an in-person clinical visit. That could more easily lead to misdiagnosis, missed symptoms or physical clues, prescription of the wrong medication and the potential consequence of prescribing medication across state lines without conducting an in-person examination (a criminal offense in some states).

Security & technology concerns

Virtual health care can also be prone to security and technology threats. Privacy breaches, software malfunctions, cyber security threats, ransomware and other issues could result in noncompliance with regulations.

Something as simple as a poor internet connection or an older computer with a low-quality camera lens could play a role in misdiagnosis or miscommunication between patient and provider.

Protect yourself

Despite these risks, the standard of care test remains the same for virtual medicine: acceptable medical treatment provided by reasonably prudent health care professionals under like or similar circumstances.

Providers who choose to offer virtual care can reduce their risk by implementing best practices and recommendations from the American Telemedicine Association (ATA) and working with attorneys who are experienced in medical malpractice defense to develop policies and procedures for following those guidelines.

They should be vigilant about patient confidentiality, including written documentation, and ensure their software platforms have encryption, cybersecurity and other safeguards that comply with federal and state privacy laws such as HIPAA and the Health Information Technology for Economic and Clinical Health Act, also known as HITECH.

Providers should educate patients on the proper protocols of virtual visits and describe the possible risks of seeking care remotely. They also need to be mindful that there will be an inherent lack of personal connection and continuity of care, which tend to reduce the risk of litigation in longstanding doctor-patient relationships.

Physicians may need to be more careful in making sure patients follow through on diagnostic testing such as bloodwork or radiology, prescription medications, other recommended treatment or specialized care.

Most important, when a virtual visit doesn’t yield enough information, especially if the patient may have a serious illness or condition or a history of underlying health issues that may cause complications, physicians should document the lack of information and insist on an in-person appointment for a more detailed examination or diagnosis.

Pros and cons

Telemedicine offers many new opportunities and potential benefits for patients and physicians in the increasingly complex health care environment. As it evolves, medical providers must stay alert to the possible risks of litigation, especially when making a new diagnosis or presented with a new symptom or health concern. Work with experienced medical malpractice counsel to create policies and procedures that comply with ATA guidelines, and vigilantly follow best practices.

Remember that virtual care is still in its infancy, and we have much to learn.

James R. Embrey Jr. is a partner at Hall Booth Smith, P.C., who defends businesses in medical malpractice litigation, general liability, and more. Send your questions to medec@mjhlifesciences.com.