There was a time, not too long ago, when if someone in the house got sick, you would call up the family doctor to make a house call. They would arrive with a bag of medical tools and first aid supplies to provide a quick diagnosis and treatment. Today, those “house calls” have been replaced with telehealth visits. This is where you can check in with your doctor in a video call.
After COVID, we all became familiar with Zoom calls and FaceTime. It’s only natural that a doctor or therapist would use the same technology to support their patients. Of course, with a telehealth session there are limitations.
Could telehealth mistakes be considered an incident of medical malpractice?
Yes, they can. If you’re concerned that your telehealth session has led to harm, you need to speak to an experienced Kentucky medical malpractice attorney. That attorney will be in the best position to provide you with an understanding of the law and provide you with answers to all your questions about how you should proceed.
Defining Medical Malpractice in the Context of Telehealth
Even though we place an enormous amount of trust in a doctor, they are not infallible. They chose a profession that requires them to adhere to a recognized standard of care. If they don’t meet those obligations, they can be held liable for their actions.
How could medical malpractice show up in the context of a telehealth session? Consider the following:
Misdiagnosis: One of the benefits of a telehealth session is convenience. Not every exam or discussion with a doctor requires a face-to-face visit. That doesn’t mean the doctor should “let things slide” with the excuse of not being in the room. If they fail to spot or misinterpret symptoms due to the lack of a physical exam, that can be a breach of care.
Prescription errors: Many prescriptions require a documented patient encounter before renewal. That visit can happen over a telehealth session. Unfortunately, it could result in the doctor giving the wrong medication, failing to recognize any possible side effects, or failing to check a patient’s medical history for drug interactions. That can lead to serious health complications.
Failure to refer: Everyone understands that telehealth sessions have their limits. Not advising a patient to seek in-person or emergency care when a remote evaluation is insufficient is another example of negligence that could be an actionable cause of a medical malpractice lawsuit.
Poor documentation: If electronic health records are incomplete going into a virtual session, it could lead to missing vital details about the patient that could trigger complications.
Proving a Breach of the Virtual Standard of Care
Before you can proceed with a medical malpractice claim, Kentucky law stipulates that you must obtain a Certificate of Merit. This is an affidavit prepared by an independent medical professional who practices in the field that is related to your injury. You and your attorney will present your evidence to the medical professional for examination and analysis. It should conclude that there is a reasonable basis to commence legal action.
They will be looking for proof of these core elements of negligence:
Duty of Care
There needs to be a clearly established provider-patient relationship that shows the practitioner agreed to evaluate, diagnose, or treat you via a telehealth platform. Typically, this will mean proof that you signed consent to the session. However, the provider-patient relationship is what creates the duty, and it can exist without signed proof.
The Standard and the Breach
Next, there needs to be evidence that the provider failed to meet the standard of patient care by ignoring red flags, failing to order essential physical follow-ups, or mismanaging remote data.
Causation and Harm
Finally, there needs to be a direct link between the virtual mistake and your worsened condition. That can include delayed treatment.
Once you have the Certificate of Merit in place, you will be in a stronger position to proceed with your claim. Finding the right medical professional to provide you with a certificate is a job your attorney will handle from start to finish.
Jurisdictional Issues in Interstate Telehealth Malpractice Claims
There could also be jurisdictional issues related to your telehealth malpractice claim. For example, courts and medical boards generally hold that the practice of medicine occurs where the patient is physically located during the telehealth encounter.
Kentucky participates in the Interstate Medical Licensure Compact, which is how out-of-state physicians obtain expeditious Kentucky licensure. Otherwise, the provider who is conducting the telehealth session must hold a valid license in the patient’s home state. In Kentucky, that license is issued by the Kentucky Board of Medical Licensure. A doctor who is found to be treating patients across state lines without proper credentials could face disciplinary actions or even criminal charges.
Getting the Right Support If You Are Harmed by a Telehealth Error
There could be a gap between your telehealth session and a health complication. Once you discover the harm, the clock starts ticking. Based on Kentucky’s statute of limitations, you’ll only have one year to file your medical malpractice claim. Proving a medical malpractice claim will take an exhaustive investigation, which is why you want to start as soon as possible.
The attorneys at McCoy & Hiestand, PLC, have extensive experience with medical malpractice claims. We have a network of reliable medical professionals that we call on to provide certificates of merit and direct testimony. We also understand how insurance companies operate to avoid exposure. We won’t let them get away with delayed or unfair settlements.
That doesn’t mean these cases are easy. If we take your claim, it’s because we believe we can win it. Whether that means an out-of-court settlement or presenting your story to a jury, we’ll be fully prepared to fight for what we believe you deserve.
Contact our team today to set up a free case evaluation. You’ll feel better knowing your options.
