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The New Age of Virtual Appointments: Embracing Telehealth and What It Means for Malpractice Cases

June 18, 2020

Telehealth is the use of videoconferencing and phone communications to assist with long-distance patient healthcare. The American Telemedicine Association says that telemedicine may involve videoconferencing, remote patient monitoring, image capturing, and the use of peripheral digital diagnostic medical devices.

A healthcare provider’s telemedicine technology must comply with HIPAA, HITECH, and state regulations. Plus, healthcare providers are required to comply with all in-person medical practice standards, medical licensing boards, and informed consent requirements.

Because of the coronavirus (COVID-19) pandemic, the federal government has relaxed rules for telehealth or telemedicine. Usually, telemedicine providers are required to be licensed in every state in which they practice medicine; but with the COVID-19 pandemic, many states have eased this requirement and are permitting physicians to practice across state lines.

In mid-March, Michigan Governor Gretchen Whitmer announced that the state would expand access to telemedicine for Michiganders by allowing Medicaid beneficiaries to receive services in their home while the state combats the spread of the coronavirus. Also, numerous insurance plans in Michigan announced they would cover and encourage the use of virtual care and telemedicine, as well as waive cost-sharing for COVID-19 testing. So, here in Michigan, patients can now be at home and speak with a healthcare professional, and not risk exposure to the coronavirus.

However, patients in Michigan may have concerns about the level of care they receive and what to do if a healthcare provider makes a mistake with a telemedicine diagnosis.

What are the Different Types of Telemedicine Malpractice Claims?

A patient may suffer serious injury from a telemedicine session with a doctor in several ways. Some of these are the same physician errors as when a patient is seen in-person, such as incorrect diagnosis, missed diagnosis, the wrong interpretation of an image, prescription errors, failure to treat, or delayed treatment.

Plus, in the coronavirus pandemic, there is a greater chance of a misdiagnosis of COVID-19 itself if a healthcare provider fails to recognize the symptoms and does not follow-up with proper medical treatment.

A timely diagnosis, isolation, and treatment of COVID-19 is critical to surviving the disease. For example, a patient may describe his symptoms on a telemedicine visit as shortness of breath and cough associated with dull chest pain, as well as fatigue and a temperature of 102°F. A doctor might diagnosis this as hypertension or the flu and set a course of treatment, when in fact it is COVID-19. In one case, it was three days later that the patient called 911 and was taken to the hospital because his symptoms had worsened. Once admitted, he was found to be in severe respiratory distress associated with the coronavirus.

Injury may also occur when a physician assistant (PA) or advanced practice registered nurse (APRN) is providing the telehealth services under the supervision of a physician, rather than the physician.

In addition, there also may be harm caused specifically by telemedicine. There could be miscommunications, privacy and security issues, and a patient may claim that the doctor should have performed an in-person examination instead of only a video conference. Computer problems and power failure could also disrupt care, which could result in injury, and a malpractice claim.

What is Needed to Prove Medical Malpractice Based on Diagnostic Error?

Patients should understand that physicians are not always responsible for all diagnostic errors. However, just like other medical malpractice claims, a patient must prove three elements to be successful in a medical malpractice lawsuit based on a wrong diagnosis via telemedicine:

  • The healthcare provider was negligent and failed to provide treatment in a reasonably skillful and competent manner (standard of care);
  • The healthcare provider’s negligence was the cause of the actual injury to the patient; and
  • The patient sustained damage.

The vast majority of Michigan medical malpractice cases depend on whether the second or third element (or both) is satisfied. The issue is whether the physician was negligent and if that negligence caused harm to the patient. An experienced Michigan medical malpractice attorney from Buchanan Firm can discuss your case with you and determine whether a reasonably skillful and competent physician in the same situation wouldn’t have made the diagnostic error. In which case, the treating physician may be liable for malpractice.

Contact us with Your Telemedicine Questions

For a free consultation with an experienced medical malpractice attorney in Michigan, contact Buchanan Firm. We can discuss your situation if you believe you’ve been injured as the result of a misdiagnosis or missed diagnosis that arose from a telemedicine visit.

Our firm proudly serves people all across Michigan, including major cities like Grand Rapids, Flint, Jackson, Saginaw, Detroit, and Ann Arbor, and rural towns such as Mt. Pleasant, Cadillac, Gaylord, Traverse City, Marquette, South Haven, and New Buffalo. We will meet you after-hours, at home or in the hospital to accommodate you.

Contact us today!