Although in-person visits have slowly begun rebounding to pre-pandemic levels, and some measures that expanded access to telemedicine during the pandemic have ended, it is anticipated that increased use of telemedicine will continue. The American Medical Association has stated that telehealth is a critical part of the future of health care…law.com, Telemedicine in the Era of COVID-19: What Does It Mean for Med Mal Litigation? Jeffrey Krawitz and Michael Ksiazek, May 2022
There are several ways in which telemedicine can impact the prosecution and defense of medical malpractice claims. Security and technology problems have the potential to result in medical errors and patient harm. In Niedzwiadek v. Anmuth, a New Jersey case, a patient died of a catastrophic brain injury after a physician, who was supposed to be monitoring the patient remotely, claimed internet connection was lost.
Another concern is the potential for lack of continuity of care. Telehealth was originally contemplated as a supplementary tool to be employed in an already existing doctor-patient relationship. When a patient meets a provider for the first time virtually, or only sees a provider virtually, there is greater potential that the physician will not have a full and thorough understanding of the patient’s medical history. Additionally, the somewhat disposable nature of virtual appointments has the potential to hinder the long-term relationship building that is critical to a doctor-patient bond.
Evaluation and diagnostic capabilities may be more limited in virtual settings than in-person settings.
Telemedicine often involves physicians and patients who are not physically in the same geographic region. This can impact what medical standard of care applies.
In 2017, New Jersey enacted sweeping telemedicine legislation. The New Jersey Telemedicine Law provides that clinicians providing care via telemedicine are held to the same standards of care that would apply to in-person settings. And, where telemedicine services cannot meet the applicable standard of care, the provider must direct the patient to seek in-person care. Additionally, the law states that a provider may only prescribe medications via telemedicine after a valid provider-patient relationship has been established, and Schedule II controlled substances may only be prescribed via telemedicine after an in-person examination.
This legislation makes one thing undeniably clear: Telemedicine is here to stay, and medical malpractice attorneys must be mindful of its scope and liability implications.