Telemedicine and malpractice, what you need to know

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By: Joseph McMenamin, JD, MD

[Ed. We are honored to present this guest post by Dr. McMenamin, who was a practicing emergency physician before turning his sights to the practice of law. He is currently a partner at McGuireWoods LLP specializing in health-related litigation.]

Recently, an Atlanta attorney began advertising his services as plaintiffs’ counsel in claims arising from telemedicine services.

At his website, he pointed to the dramatic growth in the number of telemedicine sessions in Georgia. He claimed that some patients might be “victim[s] of … telemedicine mistake[s],” and that such patients should “understand [their] rights.”

The author suggested that “patients may be less secure in their diagnoses or follow-up treatment. They may be concerned that a doctor will make a mistake that could have been avoided if the doctor and patient had met in person.”

The author even offers a free book entitled “Why Did This Critical Medical Error Happen to Me?” The site makes no effort to demonstrate that any practitioner offering services at a distance actually breached the standard of care, or even made a “telemedicine mistake,” that any patient failed to “understand his rights,” or came to harm as a result, that any such harm “could have been avoided if the doctor and patient had met in person” or that any court has actually entered judgment against a telemedicine clinician.

Instead, he simply planted some seeds of doubt.

Although this ad is the first of its type I have personally seen, it’s scarcely surprising. Lawyers have been advertising for decades; it was only a matter of time before telemedicine would be targeted. Telemedicine services are becoming more common, so malpractice exposure necessarily increases commensurately. The sponsoring lawyer may have been seeking “first to market” advantage. It’s clear that, like other sellers, lawyers believe in the power of advertising.

Law firms have invested heavily in Google key word advertising, for example. The Institute for Legal Reform, an arm of the U.S. Chamber of Commerce, recently published “The Plaintiffs’ Bar Goes Digital: An Analysis of the Digital Marketing Efforts of Plaintiffs’ Attorneys and Litigation Firms.”. The analysis describes marketing efforts disguised as non-legal websites and attempts to incorporate content from law firm-sponsored websites into Wikipedia entries.

According to the report, ownership of sponsored social media profiles and websites may not be disclosed. When firms do disclose ownership, they may do so in a fashion that’s difficult to find. They may require users to click on multiple pages before finding the key disclosure, for example, or use tiny font at the page where the information is displayed. Some law firms sponsor a network of websites “positioned as patient support groups, medical resources, official-looking government sites and e-advocacy organizations,” employing such domain names as “.org” and “.us.”

Some of these sites incorporate medical terminology into their names and provide information purporting to describe treatment options and the like. Many are designed to collect the individual’s contact information, apparently to facilitate engagement. To this writer, it is more than mildly ironic that law firms and lawyers employing these artifices are among the first to attack companies for allegedly deceptive advertising.

So far, I personally have not found a website advertising the services of plaintiffs’ lawyers in connection with mHealth per se. Since mHealth is really just a variation on telemedicine, though, the communications described above would probably serve much the same purpose. In due course, I expect we probably will see ads soliciting representation of patients claiming harm from mHealth specifically.

None of this necessarily means that one should decline to provide services through mobile devices. It does mean, however, that those who elect to do so need to be aware of the risks. Among them is the risk that a lawyer near you – or, in this era, far from you – is prepared, or is preparing, to make malpractice claims on behalf of patients whom you labor to serve in person or at a distance or both. Malpractice litigation is of course a malady of multifactorial etiology, for which no cure has so far been found. It makes sense, however, to take precautionary steps.

One way is to keep abreast of developments in clinical practice guidelines, such as those [Practical guidelines for videoconferencing-based telemental health] ATA has promulgated for telemental health services. Complying with such guidelines may diminish liability exposure.

Note, however, that doing so is no panacea: (1) such guidelines may be inadmissible hearsay; (2) on cross, a capable lawyer can probably manipulate the language of such guidelines so as to convert them from your shield into his spear.

A second step is to check to see whether your existing malpractice insurance coverage will extend to risks associated with this type of service. Some policies are silent on the question. Others have explicit exclusions. Some companies will ask about the specific technology employed to assure themselves it is not out of date. Increasingly, coverage is available in the off-the-shelf policies, especially where the provider limits his services to patients living in his own state.

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