The COVID-19 pandemic and resulting social distancing protocols made telemedicine a necessary tool for medical professionals overnight. Now that everyone has had a chance to catch their breath, special legal considerations about medical malpractice are coming to light.
Telemedicine and telehealth are now ingrained in healthcare delivery systems and are helpful for patients who have mobility challenges or live far from their providers’ offices. One cannot argue against the convenience of not having to drive to a medical office, but the risks of telemedicine can be significant. It is vital for healthcare providers and the people they treat to understand the associated risks and restrictions of telemedicine.
Telehealth and Telemedicine
Telehealth is not the same thing as telemedicine. “Telehealth” is a more comprehensive term that can include remote patient observation tools to help with medical consults, medical management, health-linked learning between patients and providers, and community health. “Telemedicine” focuses on the preventative and therapeutic aspects of healthcare and healthcare delivery.
The risk of medical malpractice is nothing new, but with telehealth and telemedicine, the risks of medical malpractice have changed. Providers work with private information provided by patients when they are online, like images, documents, and data. This can expose patients if proper security protocols are not followed or if the information gets breached.
Telehealth, Telemedicine, and Negligence
Patients expect to receive quality medical care whether it is in-person, or through another means, as is their right. More than 200,000 instances of medical malpractice occur every year, yet only two percent of the patients affected by it report their claims. A medical practitioner could be held liable if a patient’s standard of care is breached during a telehealth visit, whether the malpractice is due to the practitioner’s miscommunication, a negligent act or omission, or a misdiagnosis. On top of that, there could be technologically based risks like software malfunctions.
The issue of medical malpractice comes up when providers allegedly breach the standard of care that is owed to their patients. That in turn causes patients to be harmed. Medical professionals are bound by strict industry standards, which are:
- Based on each patient’s health condition and treatment plan.
- Recognized by the medical profession as acceptable treatments, provided by reasonably prudent medical professionals – under similar circumstances.
- The same, whether the treatment is provided in an office, on the phone, or a web platform.
If a provider’s negligence leads to a case of medical malpractice, they could lose their license. Other penalties might include large fines, suspension of the practice, and prison time.
What are the Problems with Telemedicine Consults?
Anyone who has had a telemedicine consult is familiar with setting up accounts, passwords, and other security measures. During these consults, patients are not always made aware of the provider’s full name and credentials and are not told about the technology that will be used. Providers should also inform patients about:
- Alternate care options in case of a technology failure or an emergency.
- Any confidentiality or security threats.
- Risks of using the technology.
- State regulations.
- The patient’s right to refuse or stop the telemedicine treatment.
With virtual consults, the chances of medical malpractice may increase when providers try to go beyond the limits of the technology. To prevent this, they can triage patients to determine if telemedicine is the right tool for the medical condition being discussed. When a physician does not feel comfortable diagnosing a patient’s symptoms based on a virtual examination, the patient should be evaluated in person. This is especially true for potentially life-threatening and unstable medical conditions.
The Limits of Telemedicine and Telehealth
When a medical provider cannot physically examine a patient, there could be a misdiagnosis, or an incorrect medication could be prescribed for the situation. More than half of telemedicine-related claims are diagnosis-related. A misdiagnosis can also arise from ineffective communication during virtual appointments. To be able to adequately assess a patient’s medical condition, the medical professional must:
- Ask the right questions.
- Communicate clearly.
- Establish a trusted physician-patient relationship.
- Have a detailed medical history of the patient at hand.
Telemedicine and telehealth have limits that must be understood by providers and patients. It is important to explain these to patients and to have appropriate expectations. When patients understand those limitations, they might be more likely to schedule an in-person appointment and be less disappointed with virtual appointment outcomes.
Yet even when everything seems to be moving in the right direction during a telemedicine appointment, the technology could fail. A software or hardware glitch could delay the meeting or affect the audio or video. When that happens, a physician might misinterpret what a patient says and misdiagnose.
What About Privacy Concerns?
Cybersecurity concerns are another issue with telehealth, with appointments taking place on Facebook Messenger video chat, Zoom, and other video-conferencing platforms. Providers must be able to meet federal privacy and security rules, which change often. The Department of Health and Human Services relaxed some of those during the pandemic, but the rules are back in place.
Even when all the regulations are met, hackers still manage to carry out data breaches. This puts patients’ protected information at significant risk. It is crucial for these platforms to comply with HIPAA requirements because one never knows when the next ransomware or phishing scam will come around.
What Are the Best Practices for Telemedicine?
The telehealth industry is growing exponentially and as a result, there is financial pressure for medical organizations to skimp on safety to grow their practices. This creates more room for errors, and patients can end up shouldering the burden. Besides that, virtual meetings might not last as long as in-person ones and when providers see too many patients in one day, they might lose focus. How can medical professionals promote best practices with their patients?
Besides explaining the limitation of telemedicine to patients, informed consent must be offered. Patients need to understand the possible risks of these services and the associated security measures. Before, during, and after virtual appointments, providers and staff members must document everything, from the initial contact for the appointment to the final diagnosis, treatment plan, and follow-up. Thorough medical record documentation is also crucial, to meeting standards of care and patient confidentiality.
The Dayton Medical Malpractice Lawyers at Wright & Schulte, LLC, Represent Patients in Medical Malpractice Cases
If you feel that your illness or injury was caused by medical negligence during a virtual appointment, our skilled Dayton medical malpractice lawyers at Wright & Schulte, LLC, can help. Complete our online form or call our Dayton, Ohio offices at 937-222-7477 to schedule a free initial consultation. We serve clients in Dayton, Cincinnati, Columbus, Cleveland, Centerville, Toledo, Youngstown, and Miamisburg.
