Medical Malpractice Related to Telemedicine
Even before the Coronavirus pandemic forced a vast array of businesses and industries into remote delivery of services, the medical field embraced remote technological innovation in healthcare. Most healthcare facilities and private practices have embraced telemedicine to diagnose, treat, and monitor patients through telehealth apps. Patients enjoy the convenience and frequent access, while providers, including employers, enjoy cost savings, efficiency, and the general ease of electronic healthcare. Despite the many advantages of telemedicine, however, not everyone benefits from this unique approach to delivering medical services. As a patient, it is imperative to understand the fundamentals of telemedicine, as well as its benefits and potential pitfalls.
While distinct in many ways, telemedicine is not immune to medical malpractice, and patients may suffer the detrimental effects of a physician or other health professional practicing beyond the scope of their specialty, across states lines, taking inadequate patient history or medical documentation, or failing to recommend in-person diagnosis and treatment when signs of a serious condition exist. If you experienced injuries or complications related to suspected negligence involving telemedicine, our seasoned New Jersey medical malpractice lawyers are here to assist you. Please call 973-435-4551 today to discuss your case and receive a free consultation.
What is Telemedicine?
A component of the broader telehealth umbrella, telemedicine is the delivery of traditional medicine—diagnosis and treatment—through non-traditional means. Telehealth is not only health services and education, but also technologically delivered monitoring and measuring of outcomes to promote health and prevent illness. Technology, such as web monitoring apps, wearables, videoconferencing, and smartphone apps, remotely connects healthcare providers with their patients for health care, prevention, education, and public health awareness.
Practically speaking, telemedicine allows real time consultation and diagnosis. For example, a sick patient can consult with their doctor in the comfort of their own home, face to face, via teleconferencing. This can be done through computers, tablets, or smartphones. A doctor can hear and perhaps see the patient’s symptoms before deciding whether they can diagnose the patient and recommend treatment or arrange for an in-office visit. For some patients in rural or underserved populations, synchronous virtual visits facilitate broader healthcare access, less travel time, and shorter wait times for appointments.
Notably, patients also have asynchronous access to healthcare. Electronic medical records, billing records, education, public healthcare announcements, messaging and appointment-setting through physician or institutional portals provide a carousel of healthcare services. A patient can email their doctor and upload a picture of a suspicious growth, awaiting a diagnosis, appointment, or referral. If a patient is referred, electronic medical records (EMR’s) allow referring physicians to easily pass on patient records to other treating physicians.
Aside from consultation and diagnosis, asynchronous medical delivery includes monitoring and prevention. Healthcare providers collect patient data transmitted through devices, like wearables or phone apps that deliver blood pressure and glucose level readings, avoiding office checkups, exposure to sick patients, and emergencies. Medical personnel receiving the data can detect problems for patients with chronic illness when blood pressure rises or sugar levels spike earlier than the next scheduled office visit. Also, long-term facility care can move to home care with distant monitoring, using patient data collection to predict, detect, and prevent emergencies.
Risks of Telemedicine
Patients may enjoy the convenience, but do they know what they are sacrificing? Like traditional medicine, telemedicine oversight is important for patient protection. Since practitioners, hospitals, and clinics contract for these technological services, they must ensure that third parties safely handle patient data and understand the complexities of patient privacy, medical insurance reimbursement, and the intricate interrelations of the medical field generally.
So, despite cost savings, convenience, and accessibility, technology exposes patients to malpractice by healthcare providers and institutions who are negligent when delivering telehealth services. Not only does telemedicine potentially cross state lines (a wearable goes where the patient goes), violating state licensing laws, but remote patient monitoring through wearables presents a unique set of problems. Based on the readings delivered by the wearable device, a physician may change a patient’s medication based on electronic data collection indicating an emergency, like high blood sugar. However, prescribing medication without first seeing the patient may be considered negligence under certain circumstances. The fundamental question in a medical malpractice suit is whether the physician’s acts or omissions represent a deviation from standard medical practice, as prescribed by the American Medical Association, governing medical boards and oversight agencies, and other equally trained and experienced physicians’ given the specific situation.
As physicians rely on electronic data delivery, like medical records (EMRs), electronically delivered vitals, and patient-communicated symptoms to save patient lives in an emergency, another key question is whether a provider can make a proper diagnosis without an in-person physical examination. And do they obtain the fully informed consent required for virtual visits, telling the patient about the drawbacks of virtual compared to physical consultations? Not only informed consent, but privacy concerns plague the telehealth industry. All physicians must comply with privacy laws under the Health Insurance Portability and Accountability Act (HIPAA) and state laws, just as they do when practicing face-to-face medicine. How do they ensure patient data is not exposed to third party misuse?
Oversight of Telemedicine and Telehealth
The Food and Drug Administration (FDA), FCC and other federal agencies regulate the telehealth industry for patient safety, fairness, security, and innovation, while the Joint Commission overseeing telemedicine lays out the compliance requirements between healthcare facilities and contracted service providers of telemedicine technology. Reciprocally, the telemedicine services provider verifies that practitioners are licensed to practice and can use the technology without violating medical licensing laws and regulations. Contractors must supply the dual needs of compliance and practical tools or modalities for clinical healthcare. Healthcare providers rely on technology providers not to jeopardize their license. Moreover, governing medical boards require the establishment of a relationship between patient and doctor before telemedicine use.
Expansion of Telehealth in New Jersey during the COVID-19 Pandemic
In New Jersey, a telehealth provider is typically required to establish a standard doctor-patient relationship prior to diagnosing, treating, or otherwise providing telemedicine services. This includes obtaining certain identifying information and reviewing the patient’s existing medical history. However, the medical community and state officials have recognized the extraordinary circumstances that have come with the ongoing Coronavirus pandemic. To this end, New Jersey has temporarily waived the requirement for healthcare providers to review available patient medical records before beginning a telehealth visit. Practically speaking, this means that providers can still establish an acceptable provider-patient relationship in the absence of a thorough medical records review.
Nevertheless, this does not exempt providers from adherence to the proper standard of care. In fact, the standard of care is universally applicable to in-person and telemedicine visits. This necessitates extreme diligence on the part of medical professionals when gathering patient information, assessing symptoms, diagnosing diseases, and avoiding such diagnostic and treatment services via telehealth if an in-person medical evaluation is necessary. Failure to fulfill these responsibilities may constitute medical malpractice.
Have a Telemedicine Malpractice Case in NJ? Our Attorneys are Here to Assist You
Providers who remotely diagnose, prescribe, or treat, fail to obtain informed consent, or neglect protect privacy, risk medical errors, misdiagnosis, and serious injury for individuals entrusting these professionals with upholding their duty of care. While telemedicine can enhance traditional medicine, it may not replace it, especially in diagnosing patients, which is often a source of medical negligence claims. Did your doctor misdiagnose your condition via telemedicine? Did they fail to refer you to a doctor’s office, urgent care center, or emergency room?
If you are a victim of telemedicine malpractice in New Jersey, you may recover your damages from a physician who caused you injury by their negligence. A dedicated medical malpractice lawyer at Fronzuto Law Group can examine your case and determine your potential grounds for a lawsuit. If you have questions about telehealth related negligence, our team can further explain your rights under New Jersey law. We encourage you to contact us at 973-435-4551 to speak with an attorney free of charge.
- Telehealth: Applications From a Legal and Regulatory Perspective, Pharmacy and Therapeutics (P&T)
- Telehealth Services during the COVID-19 Pandemic Frequently Asked Questions (FAQs), New Jersey Division of Consumer Affairs
- Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency, HHS
- State of New Jersey COVID-19 Information Hub