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How might medical malpractice look in the landscape of telemedicine?

| Oct 23, 2020 | Medical Malpractice |

Like other people across the nation, Pennsylvanians have embraced videoconferencing as a means of safely consulting with their doctors from home during COVID-19. It is fortunate that the internet as a modern way to communicate contributes to our health care in this way, especially during the pandemic. But, as they can in the face-to-face practice of medicine, doctors could potentially engage in medical negligence in the virtual world.

Standards of medical care

The Pennsylvania Supreme Court recently described medical negligence under state law as medical treatment that “[falls] below the appropriate standard of care – that is, varie[s] from accepted medical practice.” Put differently, the high court described medical malpractice as the “unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient.”

This raises a developing question: What is the accepted and appropriate standard of medical practice in treatment via videoconference?

Remote examinations

According to an article in NEJM Catalyst, medical practitioners are developing ways that they can do virtual “physical exams” by having patients perform certain movements or take certain measurements during the call (such as taking their pulse, using the Roth Score to measure oxygenation saturation by counting through a deep breath or jumping to help diagnose abdominal disorders). Part of this remote exam involves keen visual observation of patients to spot symptoms or signs of disease or injury. It is likely that these new practices will evolve into accepted standards of care within telemedicine.

Virtual standards of care

The NEJM article seems to argue for application of traditional standards of care to telemedicine, stating that the “effectiveness of care should be defined by the medical issue, the provider, and the care delivered – not by whether it was done in person.” It points out that even in a face-to-face appointment, diagnosis is not always possible without further testing or consultation with a specialist. It follows that it is not a weakness of telehealth that a long-distance diagnosis is not always possible. Rather, the physician should seek “actionable information” to determine the “correct next step.”

The physician might recommend a next step of at-home self-monitoring and symptom treatment, an in-person appointment, lab testing or scans – or immediate emergency treatment. While a doctor may differently come to their medical recommendations in a video visit, the goal should always be to give reasonable medical advice.

This area of medical malpractice law is rapidly evolving. Certainly, traditional standards of medical care continue to apply, but additional standards may evolve related to virtual treatment.

Any Pennsylvanian concerned about harm from telemedicine treatment should speak with a medical malpractice attorney as soon as possible, especially since this is a developing area of law – and of the practice of medicine.