Do Virtual Patient Visits Increase Your Risk of Being Sued?

Neil Chesanow

Disclosures

October 22, 2014

In This Article

A New Way to Get Sued?

Virtual patient visits—in which physicians interact with patients by computer, tablet, or even smartphone via videoconferencing, rather than in person during an office visit—are expected to grow exponentially in the next year or two.

Many physicians are concerned that malpractice suits arising from these remote visits will grow exponentially as well.

"How in our right minds can we divorce ourselves from a face-to-face interaction and physical examination with our patients," one doctor worried in a recent comment to Medscape, "and still consider that we are giving good medical care?"

Many other physicians, who don't share this doctor's reservations and are considering offering virtual patient visits, nevertheless wonder, as another doctor recently asked us, "What is the status of medical liability insurance coverage for online practice?"

To get some perspective, we asked experts at major medical malpractice insurers and virtual physician networks. Here's what they have to say.

A Low Incidence of Claims to Date

While some form of telemedicine has been practiced in the United States for over 50 years, very little is known about the liability risks associated with it. According to a blog post by emergency physician and attorney Joseph P. McMenamin, MD, JD, a member of the legal resource team at the Robert J. Waters Center for Telehealth & e-Health Law, there are several reasons for this.[1]

First, the number of remote patient visits compared with the number of inpatient visits has been and still is miniscule, Dr McMenamin writes,[1] although this is soon expected to change. Second, a high proportion of liability suits involving telemedicine have been settled; settled cases don't get reported as much as litigated ones do, so it's hard to learn about them. Third, many settlements include confidentiality agreements that forbid the parties from disclosing the details.

Be this as it may, malpractice insurers aren't particularly concerned that physicians remotely interacting with patients will expose their client doctors—or their firms— to an avalanche of new liability risks simply because they are practicing telemedicine per se. Their perception is that the number of lawsuits arising from virtual patient visits has been low and is likely to remain low.

"The number of claims involving telemedicine is very small," believes Robert D. Francis, MBA, chief operating officer at The Doctors Company, the nation's largest physician-owned malpractice insurer. "That's because, even though telemedicine has been around for a long time, it's only over the past few years that it has started to grow significantly, particularly where video visits are involved."

"It's still somewhat of an emerging area," agrees Howard H. Friedman, president of the Healthcare Professional Liability Group and chief underwriting officer and chief actuary at ProAssurance, a large malpractice insurer. "But there has been a certain amount of acceptance, and it's an expanding area of medicine, just because of the potential cost savings and the increased access to physicians."

It's not as if a malpractice attorney can claim, in 2014, that the mere fact that a doctor conducts video visits—or communicates with patients remotely by phone, secure email, or even texting—is a deviation from standard medical practice. Increased use of telemedicine is called for in the Affordable Care Act, and members of Congress on both sides of the aisle are pressing for its expansion.

"People have sued hospitals because they didn't use telemedicine," Jonathan Linkous, CEO of the American Telemedicine Association, recently told Medscape. "The claim was that this is now the standard of care."

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