While telehealth technology advances, unresolved legal issues continue to deter wider adoption of telehealth as a means of delivering health care services. One issue that telehealth providers must consider is the standard of care that applies in telehealth encounters. Generally, a plaintiff in a medical malpractice suit must prove, among other things, that the provider breached the standard of care. Therefore, knowing what standard of care applies is critical for any telehealth provider that wishes to insulate itself from potential malpractice liability.
In traditional medical malpractice cases, the standard of care could be a local or national standard. Under the locality rule, provider liability is measured based on local customs. The locality to be used as a reference point could be the provider’s community or the entire state. Other states, on the other hand, compare the provider’s conduct to prevailing national practices instead. In telehealth encounters, where the provider and patient are in separate locations, an issue arises as to which community – that of the patient or the provider – should be used as a point of comparison. Moreover, under the locality rule, telehealth providers that provide health care to patients in multiple communities across the country (or even the world) would be burdened with having to adhere to multiple standards of care.
There is also a web of state law and guidance addressing telehealth standards of care. Many states, such as California and New York, see telehealth as a tool in medical practice, not a separate form of medicine, and clarify that the standard of care is the same whether the patient is seen in person or through telehealth technologies. Specific standards may also exist that affect the prevailing standard of care. For example, many states require verbal consent from the patient prior to a telehealth consultation.
Another development to keep in mind is that the use of available telehealth services could eventually become part of the standard of care. In recent years, patients have filed lawsuits against providers for not providing telehealth services. These patients claimed that they were harmed because the providers failed to use widely available telehealth technologies. As telehealth gains more widespread acceptance, we may see more and more providers held liable for not providing telehealth services.
Telehealth providers should become familiar with these issues to help limit liability. There is currently very little case law involving malpractice in the telehealth context, creating some uncertainty as to exactly what providers must do to limit their liability exposure. As the use of telehealth becomes more widespread, we will undoubtedly gain more guidance on what standards of care telehealth providers need to adhere to.