2024 Winning Essay

Muddied Medicine: Effects of Telehealth in Medical Malpractice

Pittsburgh Injury Lawyers Scholarship 2024

Catherine Cheng

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Rice University – Undergraduate

Social Policy Analysis Major

Political Science Major

Medical Humanities Minor

Practical and preventative in nature, telemedicine had brought about a wave of increased accessibility to healthcare in ways never seen before in the industry. From the year 2019 to 2020 alone, the use of telehealth climbed a whopping “7060% nationally” (FAIR Health). However, medical malpractice cases began to rise alongside the increased frequency of telehealth consultations, drawing doubts from patients. Every year, upwards of 12 million Americans are faced with a misdiagnosis from their providers, with more than half of these incorrect diagnoses posing significant harm to the patient. This number becomes a larger issue as 70% of telehealthrelated cases are centered around a misdiagnosis. With little precedent in the legal system on these cases, the facts become increasingly difficult to discern. The number of medical malpractice cases will only seek to exponentially multiply as telehealth becomes more popular, but proving liability will only become more difficult.

Regulation poses an additional issue for the future of medical malpractice. By April of 2020, “ over a third of all doctors’ appointments in the country were conducted via telehealth” (Bestsennyy et al.). This allowed, and currently still does allow, for those who are infectious to stay within their homes, further preventing the spread of disease. With this expansion of telehealth, individuals were allowed to seek medical solutions without facing the barrier of jurisdictional boundaries. However, in the years following the COVID-19 pandemic, states began to remove out-of-state access. This rollback addresses legal concerns as telemedicine’s accessibility makes it increasingly feasible for practitioners to exploit the system. Currently, most states require physicians to be licensed in the specific state where they practice. It would cost a whopping $90,000 in upfront fees and an additional “$11,000 in renewal fees annually” to obtain licenses in every state, in which doctors are able to save with the utilization of telemedicine (Trotter). However, with the expansion of telemedicine, as shown in 2020, doctors are now able to scoot past state laws with no regulatory issue. This causes concern– how will states be able to apply their laws on medical professionals if they are not within state lines? Since every state has their individual, unique licensing policies, the law becomes blurred. Doctors are able to now manipulate the uncertainty within the legal protocol, they are able to escape malpractice accusations, increasing the number of overall malpractice cases. Telemedicine enables physicians to move states and practice without issue, even when they are facing legal scrutiny in another state. If they cannot succeed in one state, there are 49 others to work with. The effects of the repercussions are now diminished, and may cause issues in the quality of care received. Unless licensing policies are standardized nationally, trespassing jurisdictional lines will bring about additional difficulties in medical malpractice law.

Furthermore, the very foundation of telehealth threatens the field of medical malpractice law. With the increase in the usage of technology, physicians must adapt to the changing climate by adding devices and other tools, such as artificial intelligence and different telehealth platforms, to provide care for their patients. However, with the rapid inclusion of technologies, malpractice becomes more likely. This is for a variety of reasons. 42% of physicians are unable to integrate technology into the workflow, 36% of patients have difficulty accessing telehealth platforms, and 23% find that the security and privacy of patient information is compromised (Frieden). The combination of these risks quickly evolves telehealth from a positive benefit in the medical world to one of uncertainty. With this, liability can be difficult to prove despite the growing number of cases.

Concerns arise on both the patient and provider’s end. First, issues begin to be clearly identified from the patient’s perspective. Many telemedicine platforms allow for patients to communicate with their provider through a video conference. This may include showing the camera the issue of concern on the patient’s body. Even without the usage of camera technology, warped audio can also make it difficult for practitioners to accurately reach a diagnosis. Failure in technology creates complications as the technology has altered the process between the examination and the diagnosis. This draws the question– would the provider be liable despite the miscommunication being solely due to the technology?

Secondly, issues on the provider’s side. Since telehealth limits the scope of how carefully a physician would examine a patient to reach an accurate diagnosis, they may turn to over-rely on technology. This compensation can often cause issues and with the increased use of AI in clinical decision making (CDS), proving liability becomes difficult. This technology is capable of suggesting a course of action to take, and can be used either through virtual or physical interactions with patients. If the CDS tool provides physicians with a solution, should these physicians always follow it? And if they choose not to and ultimately the physician’s actions were to deviate from the CDS technology, would they be liable? This draws concern as the error would be hard to discern in a variety of cases, making liability difficult to identify.

Telemedicine’s inherent limitations make far less meaningful patient evaluation and involvement possible. Studies have shown that due to the lack of interpersonal communication, patients are more likely to sue. Patients complained about, and sued, doctors who seemed more indifferent, at a rate of almost “twice as likely” (Carroll). Since telemedicine directly removes the built-in communication found within physical examinations and consultations, statistically, they are more likely to be sued for medical malpractice. Although a physician can learn how to develop relationships through the screens of technology, it is another added burden that may take away from other aspects of care. By impeding on the opportunity to develop genuine relationships, telemedicine further develops another barrier through miscommunication, ultimately contributing to the rise of medical malpractice cases.

The rise of telehealth served mainly to bring benefits to the patients, and prevent diseases from permeating into society. However, with this increase also comes great backlash. Coupled with the lack of precedence in previous cases, telehealth cases in the field of medical malpractice will pose difficulties in the future. With no uniform regulation stretching across the nation, physicians are enabled to continue practicing in ways harmful to patients. Additionally, proving liability will become difficult, as there is no precedent set, and the use of technology muddies the lines of law. All in all, although seemingly beneficial in theory, telehealth poses significant concerns in terms of malpractice in the medical field that must be explored further.