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Telemedicine Malpractice Defense

Experienced Telemedicine Defense Team

Lynette Byrd
Attorney Lynette Byrd
Healthcare Fraud Team Lead
Former Federal Prosecutor
Nick Oberheiden
Attorney Nick Oberheiden
Healthcare Fraud Team
Kevin M. Sheridan
Kevin M. Sheridan
Healthcare Fraud Team
Former FBI Special Agent
Wade McFaul
Wade McFaul
Healthcare Fraud Team
Former HHS-OIG Assistant Special Agent-in-Charge

If you need legal advice regarding telemedicine malpractice allegations or have questions about an investigation relating to your telemedicine services, do not hesitate to contact our team of telemedicine malpractice healthcare defense attorneys today.

Telemedicine is rippled with unresolved issues relating to duty of care or establishment of doctor-patient relationship, especially now as the nation battles with the coronavirus.

Because of such uncertainty, negligence and malpractice claims have been a top concern for medical professionals. Further, with the increase in internet scams, hacking, and cyber-crimes involving telemarketing, federal agencies also remain especially wary.

There has been an increasing willingness to hold medical professionals and providers liable for negligence, misdiagnosis, technology-related risks, and other breaches when patients are harmed as a result of telemedicine services.

The novelty of telemedicine can put your license and business at risk when you engage in telemedicine services. Do not wait before hiring an experienced telemedicine defense attorney.

At Oberheiden, P.C., our medical defense attorneys are well equipped to handle legal challenges in novel areas of the law, including telemedicine.

We have ample experience in defending doctors and other medical professionals against malpractice and negligence claims. We can do the same for you.

Do not wait for a protracted investigation or litigation to begin. Call or contact our office today for a free consultation to resolve these legal issues and protect your reputation and business.

What is Telemedicine?

The World Medical Association in its Statement on the Ethics of Telemedicine defines “telemedicine” as “the practice of medicine over a distance, in which interventions, diagnoses, therapeutic decisions, and subsequent treatment recommendations are based on patient data, documents and other information transmitted through telecommunication systems.”

Telemedicine services can involve a physician and patient or multiple physicians and other healthcare professionals and the patient. The distinguishing feature of telemedicine is its ability to monitor patients virtually and over long distances and provide medical services as well as treatment.

As a result of coronavirus, the Department of Health and Human Services (“HHS”) has taken steps to make it easier for medical professionals to provide telemedicine services. Additionally, the Centers for Medicare & Medicaid Services (“CMS”) has increased access to telemedical services in an effort to allow patients to receive certain treatments without having to travel long distances.

These efforts have been to provide telemedicine to patients while enabling them to stay at home with mild symptoms and prevent further spread of the virus. This has had added benefits such as reduced costs, time management, and increased access to healthcare in underserved communities.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former Assistant U.S. Attorney


Ellen Comley
Ellen Comley

Senior Counsel


Roger Bach
Roger Bach

Former Special Agent (OIG)

Steven Taylor
Steven Taylor

Healthcare Compliance Consultant

Susan Sage
Susan Sage

Healthcare Auditor

Telemedicine vs. the Traditional Practice of Medicine

Traditionally, during a medical examination, a doctor would physically examine the patient, diagnose them, and (if necessary) prescribe treatment for them.

Telemedicine is monumentally different. There is no physical examination of the patient. Instead, the doctor uses video conferencing or other forms of technology to deliver medical advice and treatment.

Also, with telemedicine, the doctor relies on data, medical history, images, and other information typically provided by the patient. There is sometimes less room for document verification and increased possibilities for identity thefts or other Internet-based crimes.

This makes it imperative for all medical and healthcare professionals to understand the risks of telemedicine and how to reduce their exposure to claims of negligence and malpractice.

These differences also beg the question as to whether some elements needed to prove a negligence or malpractice claim should be tempered by the virtual aspects of telemedicine—especially because telemedicine has been necessitated by the consequences of the coronavirus.

The Inherent Risks and Limitations of Telemedicine

Doctors and other medical professionals always face the chance of malpractice and negligence lawsuits. Recently, these chances have been greater for telemedicine services, especially in the midst of the global pandemic.

Below is a brief list of the risks and limitations associated with telemedicine services:

  • Inadequate assessments and the lack of a physical evaluation of the patient are factors of telemedicine that increase the chances of negligence and malpractice claims.
  • The documents, images, and data submitted to the doctor are sometimes provided by the patient and, therefore, there is less verification. These documents, images, and data may also not be as accurate or comprehensive when used with telemedicine services.
  • The increased reliance on technology and the Internet has led to phishing scams, ransomware problems, thefts, and other cyber-crimes.
  • Doctors face an increased risk of misdiagnosis with telemedicine due to the inability to perform an in-person evaluation of the patient.
  • Patients may believe it is easier to receive antibiotics and other prescriptions via video conferencing with the doctor as opposed to physical evaluations. Also, doctors are less likely to verify the accuracy of patient ailments.
  • Patients may not provide complete medical histories or could otherwise lie in order to receive certain prescriptions.
  • There may be difficulty determining when or if a valid doctor-patient relationship was established.
  • Identity theft issues and manipulation are very likely due to the sophistication of Internet tools.
  • There may be increased costs associated with telemedicine, especially if new technology needs to be purchased or if additional staff members need to be trained in new telework protocols.
  • Communication problems due to the nature of teleconferencing and video conferencing increases the risk of malpractice claims.
  • If doctors are treating patients virtually in another state, they need to be aware of that state’s rules, including those on informed consent. Differing state laws also impacts a state’s determination as to negligence claims.
  • Because the doctor cannot evaluate the patient in-person, the risk of failing to refer the patient to a specialist increases.
  • There may be unanswered questions surrounding doctor liability for communicating with other physicians about the same patient where those other physicians have never seen or contacted the patient.

The above list is only representative of some of the risks inherent in telemedicine. If a patient is harmed as a result of telemedicine services, doctors could face both substantial liability, loss of their medical license, imprisonment, suspension from practicing medicine, and irreparable reputation harm.

While many states have requirements in place to alleviate these telemedicine risks (such as emergency provisions, written documentation, and follow-up services), these may not be enough to safeguard or defend your license.

The risks of telemedicine only underscore the necessity of discussing these issues with an attorney experienced in medical malpractice and negligence issues—and an attorney who has an in-depth understanding of the impact and consequences of telemedicine.

Does (or Should) Telemedicine Affect A Doctor’s Standard of Care?

Is There A Standard of Care for Telemedicine Services?

Many individuals understand that telemedicine does not provide the same degree of medical evaluation as would an in-person exam. In fact, states have mandated that telemedicine not be used for certain conditions such as acute care and emergencies.

Despite this, there is an implicit understanding among both patients and doctors as to the limitations of telemedicine. For instance, there are greater risks associated with telemedicine services, as we noted in the prior section.

However, regardless of whether care is rendered via teleconferencing or in-person office visits, the doctor still owes their patients a duty of care.

In other words, this duty of care is based on the medical profession and not on the means by which the services are provided.

What is the Standard of Care?

As soon as the doctor-patient relationship is formed, the doctor owes their patients a duty of care to their patients. Even telemedical services that involve online or virtual consultations establish a doctor-patient relationship.

But what is the nature and extent of this duty of care? This is an unsettled issue and can vary from state to state. The lack of physical examinations and face-to-face communication have been the subjects of numerous debates on telemedicine.

The duty of care means that the doctor is required to exercise the degree of care and skill which a doctor in the same medical practice and medical field would possess under similar circumstances.

If the telemedicine doctor breaches their duty of care to their patient and this breach is the proximate cause of the patient’s injuries, the telemedicine doctor may be liable for the resulting injuries.

In such cases, the doctor may face administrative, civil, and even criminal penalties, loss of their medical license, and reputational harm.

Whether the extent of the penalty will consider that telemedical services were provided or that telemedicine presents inherent limitations to a patient’s diagnosis and treatment are questions that will vary from state to state.

Is the Standard of Care Different for Telemedicine?

The standard of care has traditionally been left to the medical profession to define; however, state legislators have taken up this duty when it comes to telemedicine.

While some states have not yet addressed this issue, those states that have tend to favor a standard of care that is equal to the standard of care for doctors practicing medicine in-person.

The Federation of State Medical Boards (“FSMB”) represents state medical boards within the United States and supports the public health through physician monitoring, discipling, regulation, and licensing. In 2014, the FSMB released a statement that declared that treatment, evaluation, and consultation recommendations conducted in “an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (encounter in person) settings.”

Many states have emulated this approach by the FSMB. Below are some examples of recent administrative codes, regulations, and statutory provisions regulating the standard of care for doctors that engage in telemedicine services:

  • In California, individual doctors who provide telemedicine services must maintain the same standard of care “whether the patient is seen in-person, through telehealth or other methods of electronically enabled healthcare.” California’s view is that telemedicine (also known as telehealth) is “seen as a tool in medical practice, not a separate form of medicine.”
  • With regards to telemedicine and telehealth, the Delaware code notes that “[t]reatment and consultation recommendations made in an online setting or through audio only communication . . . will be held to the same standards of appropriate practice” as traditional practice.
  • The Hawaii statute on the practice of telehealth provides that “[t]reatment recommendations made via telehealth, including issuing a prescription via electronic means, shall be held to the same standards of appropriate practice as those in traditional physician-patient settings that do not include a face-to-face visit.”
  • In referring to telemedicine and remote patient monitoring services, the Mississippi code provides that “[t]reatment recommendations made via electronic means shall be held to the same standards of appropriate practice as those in traditional provider-patient setting.”
  • New Jersey statutes provide that a healthcare provider using telemedicine or telehealth “shall be subject to the same standard of care or practice standards as are applicable to in-person settings” and that if telemedicine or telehealth would be inconsistent with the standard of care, patients should be directed to seek in-person care.
  • The Texas administrative code declares that “[a] health professional providing a healthcare service or procedure as a telemedicine medical service: (1) is subject to the same standard of care that would apply to the provision of the same healthcare service or procedures in an in person setting.”
  • When discussing prescribing controlled substances to patients via telemedicine services, the Virginia code states that “the prescriber conforms to the standard of care expected of in-person care as appropriate to the patient’s age and presenting condition.”

As demonstrated, a majority of states have concluded that telemedicine ought to be held to the same standard of care as traditional medicine. Some states, such as Hawaii, may be more lax with respect to that standard, while other states are either in the process of revising their standards or developing new standards.

Because doctors engaged in telemedicine services are more likely to be held to the same standard of care as in-person medical services, some doctors may be hesitant to provide these telemedicine services—as such services have inherent limitations.

Therefore, the standard of care for telemedicine remains a contentious issue and a significant obstacle to both doctors and patients.

If you have any questions about the standard of care for telemedicine, do not wait to give our team of senior defense attorneys a call today.

Need Legal Advice on Telemedicine Malpractice Charges?

Are you concerned about charges of telemedicine malpractice or negligence? Do you have questions about the differences between traditional medical services and telemedicine and its impact on standard of care? If so, do not wait any longer to contact a team of experienced medical defense attorneys.

Telemedicine involves diagnosing and treating patients via video conferencing or teleconferencing. With telemedicine services, a doctor is unable to physically examine the patient.

This has the added benefits of eliminating travel time and providing greater access to medical care. However, disadvantages include increases in Internet scams, identity thefts, and malpractice lawsuits.

The biggest drawback to telemedicine is the legal uncertainty surrounding the standard of care and establishment of the doctor-patient relationship.

At Oberheiden, P.C., our team of medical defense attorneys are prepared to defend you against telemedicine malpractice and negligence allegations. We will fight to protect your life’s hard work.

Call or contact our office today for a free consultation to resolve your uncertainty and protect your license and reputation.

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