Legal Aspects of Telemedicine: Navigating Medical Malpractice in Virtual Care
The COVID-19 pandemic ushered in a transformation in the delivery of healthcare in Pennsylvania and throughout the United States. Although telemedicine was growing more popular prior to the pandemic, concerns about the novel coronavirus forced many healthcare providers to see patients virtually. While telehealth is convenient and helpful for many, there are also some legal implications and associated problems with virtual care that need to be addressed. If you suspect that you or a loved one have experienced medical malpractice through telemedicine, the medical lawyers in Philadelphia at Raynes & Lawn have some additional information for you.
What is Telemedicine?
Telehealth, commonly referred to as telemedicine, is a healthcare practice facilitated by technology that enables remote medical consultations and the provision of healthcare services. This innovative approach utilizes various communication channels, such as video calls, phone conversations, and secure messaging platforms, to connect patients with healthcare practitioners, eliminating the necessity for in-person visits. The inherent convenience of telehealth has rendered it a highly sought-after resource for patients worldwide, offering global accessibility and flexibility in accessing medical care from the comfort of one’s home or any location with internet connectivity.
Telemedicine encompasses various modalities, including synchronous, asynchronous, and remote patient monitoring, each with its own characteristics:
- Synchronous Telehealth: This modality involves real-time interaction between patients and healthcare providers through methods like video calls or phone conversations. It closely resembles traditional in-person care, allowing for direct communication, visual assessment, and immediate feedback.
- Asynchronous Telemedicine (“Store and Forward”): Asynchronous telehealth involves the collection and transmission of patient data, such as test results or imaging studies, to healthcare providers for later review and assessment. This method enables the exchange of medical information without simultaneous interaction.
- Remote Patient Monitoring: Remote patient monitoring employs various devices to track a patient’s vital signs and health status while they go about their daily activities. This method facilitates continuous monitoring of patients’ conditions, even when they are not physically present in a medical facilit
Historical Aspects of Telemedicine
Interestingly, while telehealth may seem like a novel concept, it has been around since the 19th century. Historical instances include physicians providing medical guidance via radio to individuals on ships and the advent of teleradiology, which enabled the transmission and remote interpretation of medical tests by physicians worldwide.
Furthermore, in 2018, over 25% of US physicians had incorporated telemedicine into their practice. Due to the pandemic, the percentage of practices using telemedicine surged from 14.3% in 2018 to 70.3% in 2020.
This shows that telemedicine does indeed have benefits. Not only does it make healthcare more accessible, it also makes it less daunting.
Is There a Standard of Care for Telemedicine in Pennsylvania?
Due to the sudden increase in the prevalence of telehealth, there has been little update to the laws surrounding virtual care. Many states in the US, Pennsylvania included, do have a standard of care specific to telemedicine. This can make navigating patient care murky for healthcare professionals.
Currently, in Pennsylvania, regulations and laws pertaining to telehealth do not prescribe specific conditions or requirements for the standard of care in telehealth visits. Likewise, Pennsylvania does not specify particular conditions or requirements for the establishment of the practitioner-patient relationship in the context of telehealth visits.
Regarding online prescription restrictions for telehealth in Pennsylvania, there is no state law or regulation that specifically addresses the prescription of non-controlled substances via telehealth. However, it is important to note that individual healthcare providers may have limitations or policies regarding the prescription of controlled substances through telehealth.
In terms of informed patient consent for telehealth in Pennsylvania, the state does not specify particular conditions or requirements for obtaining informed patient consent in the context of telehealth visits.
Pennsylvania also does not mandate specific patient identification regulations for telehealth. There are no stipulated requirements for healthcare providers regarding the verification of patient identification before providing telehealth services via a telecommunication platform.
All of this adds a layer of complexity to virtual care that may have legal implications in certain situations.
Does Telehealth Increase The Risk of Medical Errors?
The integration of telehealth into healthcare practices has raised questions about whether it increases the risk of medical errors. While telehealth offers numerous benefits, including enhanced accessibility, cost savings, and specialist care access, it also presents unique challenges due to the absence of in-person interactions between patients and healthcare providers. These challenges can contribute to the potential for medical errors in telehealth settings.
However, it is important to note that while telehealth does have its own unique legal implications, there is less of a risk of issues related to in-person care, such as surgical errors.
What are Common Telemedicine Legal Issues?
Here are some medical errors that can arise in a telehealth setting:
Medical Licensing and State Regulations
Medical licensing is a fundamental concern in telemedicine. Healthcare providers must be licensed in the state where they practice medicine. Regulations around licensing can vary significantly from one state to another. Some states have adopted the Interstate Medical Licensure Compact, which allows eligible physicians to expedite licensure in multiple states. Both providers and patients need to verify each other’s locations when scheduling telehealth visits to ensure compliance with state regulations, as practicing across state lines without proper licensing can result in legal issues.
Prescribing medications during telehealth encounters is a complex issue. Federal law, such as the Ryan Haight Act, generally prohibits the online prescription of controlled substances without an in-person examination. However, regulations regarding non-controlled substances can differ by state. Providers should be aware of their state’s specific rules and limitations regarding medication prescriptions during telehealth visits. Ensuring compliance with these regulations is critical to avoid legal complications.
Patient Privacy and HIPAA Compliance
Protecting patient privacy and ensuring compliance with the Health Insurance Portability and Accountability Act (HIPAA) are paramount in telemedicine. Providers and organizations must use telehealth platforms and communication methods that meet HIPAA standards for safeguarding patient data. This includes using secure and encrypted communication tools to protect sensitive patient information during virtual visits. Additionally, data storage, such as electronic health records (EHRs), must adhere to stringent security measures to prevent breaches and unauthorized access.
Informed consent is a crucial aspect of telemedicine practice. Providers must thoroughly explain the nature of telehealth services, potential risks, benefits, and limitations to patients. Typically, informed consent is obtained through signed consent forms that outline the terms of the telehealth encounter. Proper documentation of informed consent is essential both for legal and ethical reasons, helping to establish that patients were adequately informed and consented to the telehealth services provided.
Standard of Care
Maintaining a high standard of care is a core legal and ethical consideration in telemedicine. The patient must receive care that is equivalent to what they would receive in a traditional, in-person setting. As such, the provider must adhere to clinical guidelines and adjust their standard of care to suit the uniqueness of telemedicine.
Fraud and Cybersecurity
Telehealth introduces new risks related to fraud and cybersecurity. Patients should take precautions to verify the legitimacy of telehealth providers to avoid fraudulent encounters. Providers, on the other hand, must implement robust cybersecurity measures to protect patient data from breaches and unauthorized access.
Establishing and maintaining a provider-patient relationship can be more challenging in telehealth due to limited face-to-face interaction. Effective communication, empathy, and patient engagement become paramount in building a strong provider-patient relationship remotely. Trust-building is essential for patient satisfaction and adherence to treatment plans, requiring providers to adapt their communication strategies to the virtual environment.
Scope of Practice
Understanding the scope of practice is essential in telemedicine, as state laws dictate what healthcare professionals can and cannot do. Regulations may differ between in-person and telehealth practice. Credentialing and privileging for telehealth may also require specific considerations.
Accurate and thorough recordkeeping is critical in telemedicine. Providers must maintain comprehensive medical records for telehealth visits, including documentation of informed consent, diagnoses, treatment plans, and all communications. Recordkeeping laws may specify retention periods, typically ranging from several years to over a decade, depending on state regulations.
When are Telemedicine Errors Considered Medical Negligence?
Telemedicine errors can potentially be considered medical negligence or malpractice when certain conditions are met. These conditions generally involve deviations from the standard of care that result in harm or injury to the patient. It’s important to note that to establish medical malpractice in telemedicine, several elements must typically be proven, including the existence of a provider-patient relationship, a breach of the standard of care, causation (showing that the breach led to harm), and damages. Each case is unique, and the determination of whether a telemedicine error constitutes medical malpractice depends on various factors, including state laws and regulations.
If you believe that yourself or a loved one has been harmed due to telemedicine malpractice, it is important to review the following list of examples and then to contact Philadelphia medical malpractice lawyers, like those at Raynes & Lawn.
Here are some errors that can be considered medical malpractice in telemedicine:
Medical Record Transcription Errors
The digital conversion of handwritten or physical medical records can introduce transcription errors, especially when outsourced to non-medical professionals. These errors may include miscommunication, mistranslation, or inaccuracies during the transcription process. If transcription errors result in medication mistakes, such as incorrect dosages, medications, routes of administration, or frequencies, and these errors harm patients, they can be considered medical malpractice.
Telemedicine heavily relies on technology, which is prone to glitches, errors, and connectivity problems. Technical errors during telehealth interactions can disrupt communication between healthcare providers and patients. Examples of technology-related errors include dropped connections, poor internet connectivity, corrupted files, sending the wrong patient’s records, or even accounts being hacked. If these errors lead to patient harm or hinder the provision of appropriate care, they may be considered medical malpractice.
Misinterpretation of Medical Imaging
Radiologists who provide telemedicine services play a crucial role in diagnosing medical conditions by reviewing imaging studies, such as X-rays, MRIs, CT scans, and ultrasounds. If a radiologist misinterprets an imaging test during a telemedicine consultation, leading to a delayed or incorrect diagnosis, it may constitute medical malpractice. For instance, failing to identify signs of a possible tumor could delay cancer diagnosis and treatment, potentially causing harm to the patient. This can also be true for, as an example, dermatologists who use virtual care to assess a patient’s skin.
What to Do When You Suspect Medical Malpractice from a Telehealth Provider
If you believe you have been the victim of a medical error due to negligence during or after a telehealth appointment, it’s crucial to take the right steps to protect your rights and seek appropriate recourse. Here’s a checklist of what to do if you suspect medical malpractice in a telehealth setting:
1. Gather Information
Your first step should be to collect all relevant information related to your telehealth experience. This includes medical records, prescriptions, treatment plans, and any communication you’ve had with the healthcare provider. The more detailed your documentation, the stronger your case becomes.
Keep in mind that, in Philadelphia, there is a limited timeframe within which you must file a medical malpractice claim. For cases of medical malpractice occurring after March 2002, you generally have up to 7 years from the date of the medical negligence to file a claim. It’s crucial to adhere to this statute of limitations because waiting too long to file a lawsuit may result in your claim being denied.
2. Consult Another Healthcare Professional
Consider seeking a second opinion from a different healthcare professional, preferably one who specializes in the relevant field. This second opinion can help assess the accuracy of the original diagnosis or treatment plan and provide valuable insights into whether there were any errors or deviations from the standard of care.
3. Contact the Provider
Open communication can often resolve misunderstandings or errors. Contact the telehealth provider to discuss your concerns. Explain your perspective and seek clarification about the treatment or diagnosis you received. In some cases, the provider may acknowledge the mistake and take corrective action.
4. File a Complaint
If you are unsatisfied with the response from the telehealth provider or if you believe you have a valid claim of medical malpractice, consider filing a complaint with your state’s medical board or the relevant regulatory authority. They can investigate your complaint and take appropriate action if wrongdoing is identified.
5. Consult an Attorney
Should you decide to pursue legal action against the telehealth provider, it’s essential to consult with a qualified medical malpractice attorney in Pennsylvania. Telehealth-related medical malpractice cases can be complex, and an experienced attorney can assess the facts of your case, provide legal guidance, and represent your interests throughout the legal process.
6. Preserve Evidence
Preserving evidence is crucial in building a strong case. Keep all relevant records, communication, and documentation related to your telehealth appointments. This includes medical records, emails, chat logs, and any other forms of communication. These pieces of evidence may serve as critical support for your claims during legal proceedings.
How Do Telehealth Lawsuits Work?
Let’s say it is decided that you have a claim against a telemedicine provider. You have already done everything mentioned above, including gathering your evidence and meeting with a lawyer. The next steps include submitting the claim and seeking a settlement or going to court.
Like most medical malpractice lawsuits, the main goal is to compensate you for your losses, both economic and non-economic. Damages may include:
- Medical expenses
- Lost wages
- Loss of income capacity
- Continuing medical treatment
- Cost of medications and medical supplies
- Pain and suffering
- Loss of consortium (if applicable)
- Loss of a limb
- Permanent scarring
- Loss of enjoyment in life
In tragic cases involving fatal telemedicine accidents, surviving family members may be eligible to file a wrongful death claim. Wrongful death lawsuits aim to hold healthcare providers accountable and provide compensation to the decedent’s beneficiaries. Damages in a wrongful death claim may include:
- Funeral and burial expenses
- Medical bills incurred after the accident
- Income the deceased would have provided
- Loss of support
Similar to medical malpractice claims, there is a limited time frame to file a wrongful death lawsuit in Pennsylvania, typically within two years of the death. Promptly consulting with a medical accident attorney in Philadelphia is essential. Do not miss the opportunity to pursue your claim.
Landmark Telemedicine Case
Recently, in April 2023, a settlement was made in Pennsylvania revolving a telehealth company that misled patients. This case provides a real-life example of what may count for telehealth malpractice. Please note that Raynes & Lawn was not a part of this case.
The online telehealth company, Visibly, Inc., was held accountable for deceptive business practices and a failure to comply with U.S. Food and Drug Administration (FDA) requirements. The PA attorney general Michelle Henry announced the bipartisan settlement that aimed to prevent Visibly from misrepresenting the effectiveness of its vision tests and other services.
The investigation leading to this settlement was initiated after the FDA issued a warning letter to Visibly concerning its marketing of online vision tests without the necessary FDA clearance or approval. The inquiry also raised concerns regarding Visibly’s claims about the accuracy and safety of its online tests, notably asserting that these tests were as precise as in-person examinations.
Moreover, the investigation scrutinized Visibly’s representations related to customer satisfaction rates and satisfaction guarantees, further revealing deceptive practices. This settlement serves as a crucial reminder of the importance of transparency and adherence to regulatory requirements within the telehealth industry. Patients seeking remote healthcare services, especially for critical matters like vision, deserve accurate information and a high standard of care.
Consult a Medical Malpractice Lawyer in Philadelphia
Telemedicine, also known as telehealth, is a transformative shift in healthcare delivery that harnesses technology. However, while it is convenient, there are legal considerations, such as the maintenance of the standard of care. Even though incidents of medical malpractice in virtual care are rare, the telemedicine environment makes it possible.
If you suffered serious injuries after you received negligent medical care during a telehealth visit, you should talk to a Philadelphia medical malpractice attorney at the law firm of Raynes & Lawn. The laws surrounding telemedicine continue to change as the field grows. We can review what happened in consultation with a medical expert to determine the applicable standard of care, whether the doctor’s treatment deviated from it, and whether your injuries were caused by medical negligence. Call us for a free consultation today at 1-800-535-1797.
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