Medical Malpractice Risks Associated with Video Visits
With Covid-19 still raging across the country, many doctors and patients must resort to video visits. However, these video visits are ripe with potential for medical malpractice. The primary challenge with video visits "is the inability to directly observe and lay hands on the patient," says Jonathan Einbinder, MD, assistant vice president of analytics for CRICO, a medical liability insurer based in Boston, Massachusetts.
"While you can see them via video, it can be hard to get a full sense of how sick the patient is and whether other things might be going on than what they are reporting," said Einbinder, a practicing internist.
Such incomplete pictures can lead to diagnostic errors and the potential for lawsuits, as demonstrated by a recent CRICO analysis. Of 106 telemedicine-related claims from 2014 to 2018, 66% were diagnosis-related, according to the analysis of claims from CRICO's national database. Twelve percent of the telemedicine-related claims were associated with surgical treatment, 11% were related to medical treatment, and 5% were associated with medication issues. A smaller number of claims resulted from patient monitoring, Ob/Gyn care, and safety and security.
A second issue with video visits involves documentation. The legal risk lies in documenting a video visit in the same way the doctor would document an in-person visit. It may be hard for a doctor to document how he/she came to the conclusion that they did.
A third issue is that poorly executed informed consent can also give rise to a lawsuit. This includes informed consent regarding the use of telehealth as the accepted modality for the visit rather than traditional on-site evaluations, as well as pre-procedure informed consent. Inadequate and/or poorly documented informed consent can result in a claim for medical malpractice.