Telehealth has changed how millions of Americans receive medical care. A patient who once had to take time off work, arrange transportation, or drive a long distance may now be able to speak with a healthcare provider from home.
For many conditions, telehealth can provide effective care without requiring a later office visit. An American Hospital Association review of telehealth research cites a study of more than 35 million medical records across 33 specialties. Researchers found that most telehealth visits didn’t require an in-person follow-up within 90 days.
However, virtual care has limitations. A healthcare provider may not be able to listen to a patient’s heart or lungs, test reflexes, or observe other physical signs that could be important to an accurate diagnosis. When those limitations are ignored, a missed or delayed diagnosis can have serious consequences.
A recent lawsuit involving the death of a Connecticut dental student has brought renewed attention to those concerns. According to NBC News, the young man’s family alleges that he received inadequate care in an intensive care unit overseen remotely by an off-site physician. The hospital has declined to comment on the pending litigation. The allegations haven’t been proven in court to date.
While this lawsuit will be decided under Connecticut law, patients in Texas may wonder what legal options are available to them when virtual medical care goes wrong.
Telehealth Doctors Must Meet the Same Standard of Care in Texas
The fact that an appointment occurs via phone, computer, or a medical app doesn’t relieve a healthcare provider of the responsibility to provide competent care.
Under Texas telemedicine law, a health professional providing a service through telemedicine is generally subject to the same standard of care that would apply if the service were provided in person. Texas law also requires informed consent before telemedicine services are provided and requires providers to protect the confidentiality of patients’ medical information.
The appropriate standard depends on the patient’s symptoms, medical history, the information available to the provider, and what a reasonably careful healthcare professional would have done under similar circumstances.
In some cases, a telehealth appointment may end with advice, a prescription, or continued monitoring. In other cases, the provider may need to order diagnostic tests, arrange an in-person examination, refer the patient to a specialist, or advise the patient to seek emergency care.
The issue isn’t simply whether the provider reached the wrong diagnosis. Medicine is not exact, and a poor outcome doesn’t automatically establish medical malpractice. The legal question is whether the provider acted reasonably based on the information available to them or should have obtained.
When a Misdiagnosis May Be Medical Malpractice
Diagnostic errors are a significant concern in telemedicine malpractice claims. A published review of digital healthcare risks reported that 66% of telemedicine-related malpractice claims analyzed between 2014 and 2018 involved diagnostic errors.
A telehealth misdiagnosis may support a medical malpractice claim when a provider fails to take reasonable steps that another qualified provider would have taken. Examples could include:
- Failing to obtain a complete medical history or ask about important symptoms
- Dismissing warning signs of a stroke, heart attack, blood clot, infection, or another emergency
- Attempting to diagnose a condition that requires a hands-on physical examination
- Failing to order appropriate laboratory work, imaging, or other diagnostic tests
- Prescribing medication without reviewing allergies, current prescriptions, or contraindications
- Failing to refer a patient for in-person treatment when the limits of telehealth prevent a reliable evaluation
- Giving inadequate instructions about worsening symptoms or when to seek emergency care
A patient generally must also show that the error caused an actual injury. If an in-person examination wouldn’t have changed the diagnosis, treatment, or outcome, proving malpractice may be difficult.
On the other hand, a claim may be possible if the delay allowed an illness to progress, reduced the effectiveness of treatment, led to unnecessary procedures, caused medication-related injuries, or otherwise worsened the patient’s condition.
Who May Be Responsible When Virtual Care Goes Wrong?
Determining responsibility can be more complicated with telehealth because several providers or companies may participate in the patient’s care.
Depending on how the care was arranged and what caused the patient’s injury, potentially responsible parties may include the physician, nurse practitioner, physician assistant, hospital, medical practice, staffing company, or telehealth platform. In some cases, an in-person provider may share responsibility if there was a breakdown in communication or follow-up care.
An investigation may need to determine:
- Who employed or supervised the virtual provider
- Where the provider was located and licensed
- What medical records were available during the appointment
- What symptoms the patient reported
- Whether the technology prevented the provider from seeing or hearing important information
- What follow-up instructions or referrals were provided
- Whether another healthcare professional should have been available in person
A technology problem by itself doesn’t necessarily establish malpractice. However, a provider may need to change course when poor video quality, missing records, a dropped connection, or another limitation makes it impossible to evaluate the patient safely.
What Must Be Proven in a Texas Telehealth Malpractice Claim?
A telehealth medical malpractice case generally requires evidence showing that a provider-patient relationship existed, the provider failed to meet the applicable standard of care, that failure caused or contributed to an injury, and the patient suffered legally recognizable damages.
Those damages may include additional medical expenses, lost income, physical pain, disability, impairment, or other losses resulting from the delayed or improper treatment. When malpractice results in death, certain family members may be able to pursue a wrongful death claim, and the patient’s estate may have a separate survival claim.
Telehealth cases can involve providers in different locations, and determining which state’s laws apply and where a lawsuit may be filed can add an extra layer of complexity.
Steps to Take After a Virtual-Care Misdiagnosis
The priority should always be obtaining appropriate medical care. A patient whose symptoms are severe, worsening, or potentially life-threatening shouldn’t wait for another virtual appointment before seeking emergency treatment.
Once the immediate medical concern has been addressed, patients should preserve information related to the telehealth visit. That may include appointment summaries, portal messages, emails, text messages, prescriptions, billing records, photographs uploaded via the platform, and the names of all providers involved.
It’s also important to request complete records from both the telehealth provider and any doctors or hospitals that later diagnosed or treated the condition. Those records can help establish what information was available, what the provider documented, and how the delay affected the patient’s health.
Patients may file a complaint with the Texas Medical Board when the provider falls under its jurisdiction. A licensing complaint may prompt an investigation or disciplinary action, but it doesn’t provide compensation for a patient’s injuries. A medical malpractice claim is a separate civil process.
Telehealth Convenience Shouldn’t Come at the Expense of Patient Safety
Telehealth can expand access to care and provide safe, effective treatment for many patients. The concern isn’t that healthcare is delivered remotely. It’s that providers must recognize when the limits of a virtual appointment prevent them from safely diagnosing or treating a patient.
A wrong diagnosis alone doesn’t prove negligence. But when a healthcare provider overlooks serious symptoms, fails to order necessary testing, or doesn’t direct a patient to appropriate in-person care, the patient may have grounds for a Texas medical malpractice claim.
Determining whether that happened often requires a careful review of the virtual visit, subsequent medical care, and opinions from qualified medical experts. The Cochran Firm Texas helps patients and families investigate potential medical malpractice and understand the options available under Texas law. To schedule a free consultation, call 1-800-843-3476 or contact the firm online.
