Telehealth isn’t new. But, the use of technology to deliver medical services has increased dramatically in the past few years. That shift requires adaptation, sometimes comes with bugs to be worked out, and raises new questions.
For instance, what happens when a telehealth provider is negligent? Can you file a telemedicine malpractice suit? Are telehealth lawsuits different from other Ohio medical malpractice claims?
Telemedicine has been employed for much longer than most people realize. In 2012, a researcher at the University of California reported that the concept dates back to the late 19th century, though the available tools were quite different then. Some elements of remote care have been employed for decades, ranging from doctors providing medical advice to people aboard ships via the radio to teleradiology allowing tests to be transmitted to and read by physicians around the world. Still, to many, scheduling a doctor’s visit on your laptop or phone is a new and somewhat strange experience.
Telemedicine was already growing in popularity before the Covid-19 pandemic. By 2018, the American Medical Association said more than 25% of U.S. physicians worked in a practice that used telemedicine. But, pandemic-related changes gave telemedicine a big boost. Most significantly, the percentage whose practices used video conferencing with patients increased from 14.3% in 2018 to 70.3% in 2020. More than 59% of physicians reported that they’d had at least one video appointment with a patient in the previous week.
One study of the use of telehealth visits versus in-person appointments during the last three months before the pandemic and the first three months of the pandemic showed that after mid-March 2020:
At Ohio State’s Wexner Medical Center, telehealth visits jumped from 96 in February of 2020 to 202,900 between March and July of the same year.
As mandated shutdowns ended, facilities reopened, vaccinations became widely available and people moved more freely about, the need for remote visits became less urgent. But, the change appears to be here to stay. As the surge and drop-off settled in the spring of 2021, telehealth usage was about 38 times as high as it had been in early 2020.
What does this rise in usage mean for patients, in terms of the standard of care they receive and their right to compensation if a healthcare provider is negligent?
There have been relatively few medical malpractice claims associated with telehealth visits so far. In part, that’s because, until the past couple of years, telehealth visits themselves have been relatively rare compared with traditional in-office visits. In part, it’s because many of the most common contexts for medical malpractice claims aren’t addressed through telemedicine. For example, thousands of surgical errors occur in the U.S. each year, and surgery is an in-person event. Similarly, about 1.7 million people contract infections in healthcare facilities each year, and tens of thousands die.
Some other common–and potentially deadly–types of malpractice can and do happen in telehealth settings. Some common examples include:
When these and other errors occur due to a healthcare provider’s negligence, the injured patient’s rights and options are very much the same as they would be if the negligence had taken place in an in-person visit.
In an Ohio medical malpractice case, the injured patient must prove that the doctor, hospital, or other healthcare provider failed to live up to the accepted standard of care. One early question about telehealth was whether the same standards would apply as applied to in-person visits. Obviously, a video chat with a patient doesn’t allow the physician the same opportunities to observe and examine as an in-person office visit.
There isn’t a lot of case law on telemedicine malpractice claims. That’s partly because telemedicine has been sparsely used until recently. The relatively small number of telehealth malpractice claims may also be partly attributable to the fact that providers are less likely to use telemedicine for serious medical issues.
That doesn’t mean we have no guidance on the standard applied to telemedicine providers, though. The State Medical Board of Ohio has explicitly stated that “The standard of care for telemedicine must be consistent with the standard of care for in-person medical care.” If that standard of care is not possible through a telehealth appointment, then telemedicine is not the appropriate approach. In other words, a physician who fails to provide adequate care in a telehealth visit can’t excuse that lapse or expect more leeway because the visit was remote. Depending on the circumstances, a provider negligently choosing to use telemedicine when an in-person examination was medically indicated might be part of the basis for a medical malpractice claim.
“The standard of care for telemedicine must be consistent with the standard of care for in-person medical care.”State Medical Board of Ohio
Of course, like any other medical malpractice case, the bar is high. The plaintiff must prove both that the provider failed to live up to the standard of care and that the failure caused damages to the patient. Medical malpractice claims are different from personal injury cases and other negligence-related claims in that Ohio law requires that the plaintiff obtain an affidavit from a medical expert before filing suit. This affidavit must include the following statements:
But, that pre-filing process is virtually the same regardless of whether the alleged malpractice took place in the physician’s office or via telemedicine. While your attorney and the experts may consider specific facts relating to the remote delivery of medical services, the general process–and standard of care–are the same.
If you believe that you may have a telemedicine lawsuit on your hands, get in touch today with one of our experienced medical malpractice attorneys for a free, no-obligation consultation.
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