Can I sue my teledoctor for malpractice?

The COVID-19 pandemic forced the world to connect virtually to conduct business, teach our children, and stay in touch with distant relatives. Due to social distancing measures, many also began seeing their physicians in a new way – on their smartphones and laptops.

sick woman in a telemedicine appointment

How popular is telemedicine?

The past year and a half has seen an unprecedented frequency of telemedicine visits, and that trend looks to continue even as the world slowly returns to “normal.” Telemedicine, which is a term describing live remote visits with a doctor or nurse practitioner, is a convenient and cost-effective way for patients to access their clinicians. Virtual health care also allows patients in rural areas or those without transportation to seek care. Telemedicine allows doctors to see their patients more frequently, which could improve management of chronic conditions like diabetes and hypertension.

Are there risks to having virtual doctor appointments?

The rise of telemedicine does come with some unavoidable risks. In a traditional visit to the doctor’s office, the patient is subject to a physical examination in which the clinician has the opportunity to observe and touch parts of the body, to feel for abnormalities, and to test the patient’s motor functions and reflexes. An in-office appointment also gives the clinician a chance to collect the patient’s vital signs: blood pressure, pulse rate, temperature, and weight. These physical examinations are crucial to accurately detecting and treating diseases. The exams may also assist in determining whether a prescribed medication should be adjusted or discontinued, or whether a patient should be referred to a specialist.

teledoctor waving at a computer screen

So, what happens when the examination is virtual? The remote exam’s inherent limitations inevitably create the opportunity for a missed diagnosis or the late detection of a disease. When a physician sees a patient virtually, misdiagnoses them, and that misdiagnosis leads to an injured patient, does the doctor get a “free pass” to avoid a medical malpractice claim? The answer is no – there is no malpractice exemption simply because the doctor saw the patient virtually.

In terms of medical malpractice claims, the same rules apply whether the patient was seen in-person or virtually. The law requires physicians to use “the degree of skill and diligence in the care and treatment of their patient that a reasonably prudent doctor in the same field of practice or specialty in their State would have used under the circumstances of this case.” This duty is commonly referred to as the standard of care.

Under what circumstances could a teledoctor be considered at fault?

If an injured patient brings a cause of action against their teledoctor, the patient could not rely solely on the unsuccessful efforts of their provider to prove the doctor’s negligence. The burden would be on the patient to show that the doctor failed to meet the standard of care under the circumstances surrounding a telemedicine appointment.

This would require the patient to find qualified experts, (i.e. other doctors licensed to practice in that state), to testify about the standard of care. They would have to describe how the teledoctor deviated from that standard under the specific facts known in that instance. Based upon the well-known pros and cons of telemedicine, it may be challenging to find an expert to critique the teledoctor’s judgment, but every case is unique.

The complexity of these cases requires an experienced advocate to help an injured patient navigate the process. If you or a loved one have been injured as a result of medical malpractice, Allen & Allen may be able to help. Call today for a free consultation at 804-353-1200.