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Direct-to-Consumer Telemedicine and Medical Malpractice Claims

October 2019

By: John A. Butler

Direct-to-consumer (“DTC”) telemedicine has been defined as the use of smartphones, computers, or standard telephones to obtain medical treatment or advice without a face-to-face meeting, or a prior relationship with the treating physician.  The practice of DTC telemedicine began to gain traction in the early 2000’s, and as smartphone popularity has continued to rise in the United States, so has its reported use.  Yet, in spite of the several million estimated DTC telemedicine visits annually, a recent study found no medical malpractice cases reported as the result of DTC telemedicine treatment.  According to the researchers, the study was conducted in response to regulators’ concerns over aspects of DTC telemedicine treatment – such as suboptimal treatment, inadequate patient ID verification, and incomplete access to patient medical history – which historically are factors that have resulted in medical malpractice litigation.    

Specifically, the goal of the study was to determine if DTC telemedicine has been the basis of medical malpractice suits.  By way of methodology, researchers used the LexisNexis legal case database, casting a net of unique key search terms (such as the top ten DTC telemedicine providers) all while  keeping a close eye on reported judgments, rulings, opinions, dismissals, and other judicial action taken by courts.  From there, the results were reviewed to determine which were medical malpractice cases and, of those, which related to DTC telemedicine.  In the end, the study concluded that “no reported cases of medical malpractice related to DTC telemedicine were found.”  However, this methodology has its limitations. 

For example, the researchers looked at medical malpractice cases that judicially resolved in a single month in 2018.  Further, medical malpractice suits that resolve judicially are only a narrow sliver of all medical malpractice cases.  In fact, while 8,000 suits are filed in the United States per month on average, the study looked at only 551 cases.  This disparity is because the vast majority of medical malpractice cases are not resolved by courts – they are most often settled outside of court, and therefore were not available within the data searched.  Compounding this difficulty is the fact that, when a medical malpractice lawsuit is resolved through a settlement agreement between the parties out of court, it is customary for the parties to include confidentiality provisions.  This not only limits public access to details of the case settlement, but the ability of the involved parties to talk about it.  Moreover, as it relates generally to medical malpractice cases, DTC telemedicine rarely involves treatment of complex medical cases; rather, it is used to treat the flu, sinus infections, respiratory problems, acne, and other areas of medicine that are not commonly the focus of medical malpractice litigation.  Lastly, the study was limited by the researchers’ own admission that large DTC telemedicine providers prohibit the writing of prescriptions for any controlled dangerous substances, and mandate discharge instructions advising patients to seek in-person treatment for any continuing concerns.    

As smartphone use continues to grow, we can expect the same for use of DTC telemedicine, and, notwithstanding the results of the study, it would not be surprising to see medical malpractice claims being filed in the future. 

For more information about this or other health care laws, contact John Butler or any member of the Tydings health care practice group.

This alert has been prepared by Tydings for informational purposes only and does not constitute legal advice.

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