Medical Malpractice and Telemedicine

Telemedicine is a helpful tool, especially for folks who live in rural and remote areas, or who cannot afford to take a day off work to visit a doctor’s office. Telemedicine can also be beneficial to doctors, nurses, and other healthcare professionals as they do not have to come into direct contact with so many people and possibly pass around illnesses from patient to patient.

It’s also pretty popular. The Office of the National Coordinator for Health Information Technology explains that the use of telemedicine “increased more than five times between 2019-2021.” The COVID-19 pandemic had a lot to do with this sharp increase. Even though most people and businesses have returned to normalcy, telemedicine seems to still be a popular method used by patients needing doctor appointments.

However, telemedicine comes with its own set of challenges and risks, which can potentially outweigh the positives of this popular and convenient way to visit a doctor.

What is telemedicine?

Telemedicine allows doctors to schedule and attend medical appointments with their patients, even though the patient may not be in the same room or at the doctor’s office. Instead, the doctor treats the patient virtually from the comfort of their home, work, or any other location. This can be done by:

• Telephone calls
• Video chats
• Online instant messaging
• Emails
• Remote monitoring systems

There are various names that are used to describe the same type of virtual doctor appointments as telemedicine provides. These names are telehealth, e-health, digital health, digital medicine, and more. Regardless of what name your doctor’s office uses, it typically provides the same services.

What happens during a telemedicine appointment?

While telemedicine appointments can vary for each patient, these types of appointments are usually only for minor illnesses or injuries. A telemedicine appointment may involve:

• Speaking with you about a cold, cough, or stomach bug
• Providing you with your CT scan, MRI, or X-ray results
• Following up on a recurring issue, such as migraines, infections, skin problems, blood pressure issues, and diabetes
• Managing or prescribing routine medications
• Looking at and diagnosing obvious conditions, such as on the skin, face, hands, arms, etc.
• Managing your mental health disorders, such as depression, anxiety, attention deficit disorder (ADD), or attention deficit hyperactivity disorder (ADHD)

When you attend your telemedicine appointment, your doctor will likely ask you basic questions, take notes, and provide answers to your questions. If the issue seems serious, the doctor will ask you to schedule an in-office visit to further examine your body and symptoms.

Does telemedicine increase the chances of medical errors and mistakes?

The wide use of telemedicine has led to questions about whether this form of medical care increases the chances of medical errors and mistakes. While telemedicine is very useful for those who cannot easily access care, it does come with its own set of difficulties and challenges. The main challenge is that it eliminates the ability for the doctor and patient to interact in person, meaning that the doctor cannot physically assess the patient’s symptoms or look at their bodily injuries in person.

Instead, the doctor can only see and evaluate symptoms, injuries, and conditions through a computer or cellular device screen. Although this may seem like a slight inconvenience or problem, it is actually a very big deal when it comes to a patient’s health and wellbeing. In fact, it can easily open the door to medical mistakes and errors.

Common medical malpractice issues involving telemedicine

When it comes to telemedicine, there are several medical malpractice concerns and issues that often emerge among patients. The following are a few of the most common ones:

• Prescribing the wrong medications: The Ryan Haight Act does not allow individuals to obtain a prescription through an online setting without having at least one in-person medical examination. However, 21 U.S.C. 21 USC § 829 (e)(3)(A) does give permission to prescribe medications if the doctor or healthcare provider is “engaged in the practice of telemedicine.” Therefore, while doctors are legally allowed to prescribe medications through a telemedicine visit, this type of setting can make it easy for doctors to prescribe the wrong medications, especially if they cannot thoroughly examine the patient’s symptoms or are not made fully aware of everything the patient is experiencing.
• Not having the proper medical licensing: Medical licensing is a very common concern in a telemedicine setting. Even though the visit is likely online, the physician must still have the proper medical license to practice in their state. Therefore, when a patient schedules a telemedicine visit, it is crucial that they make sure they are located in the same state as the doctor they are scheduling with. The reason why this is important is because the doctor may not be licensed to practice across other state lines, which could cause serious legal problems.
• Failing to protect privacy or follow HIPAA guidelines: In an online setting, patients may worry or become concerned about how their privacy is being protected. It is critical that doctors and nurses use certain forms of communication or platforms that still give the patient their privacy and meet the HIPAA guidelines for protecting the patient’s information. If they fail to do so, a hacker can access the patient’s data, which is a common occurrence in any online setting.
• Not providing the standard level of care: When a doctor chooses to offer telemedicine appointments, they must accept the challenges that come with these types of appointments. This means that the doctor must ensure that they are still providing the patient with the standard level of care that they would receive in an in-person visit. Therefore, they must find a way to still do this even though the visit is through a virtual screen.
• Fraudulent doctors and experiences: Another concern and issue with telemedicine is the risk of fraud. This may happen when a patient schedules a telemedicine appointment with a doctor, but the “doctor” is a fraudulent person impersonating a doctor. Unfortunately, this can happen if the proper cybersecurity measures are not taken to prevent access from unauthorized individuals. It is extremely important that patients always verify that the doctor they are speaking to is a legitimate healthcare provider and is the exact person with whom they scheduled an appointment.
• Giving the wrong diagnosis: Since telemedicine visits are conducted online, it can be challenging for the doctor to give an accurate diagnosis. This is because they may not be able to see or analyze the patient’s symptoms from afar, and they cannot perform blood tests or imaging scans to help them understand and obtain an idea about what the patient may be experiencing. As a result, the patient may receive the wrong diagnosis through a telemedicine visit.

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