Telemedicine Tort Law and Avenues to Risk Reduction

Distance care services have so far enjoyed an excellent claims history. There have been remarkably few reported cases, and even fewer true professional or product liability claims. The majority have either been claims against Internet pharmacies for injudicious dispensing of a controlled substance, or 42 U.S.C. § 1983 claims arising in correctional facilities and alleging “deliberate indifference to a serious medical need.” There have been a good many privacy claims, however, and they provide useful guidance to providers and others in the identification and management of risk.

The explosion of the utilization of distance care technologies triggered by the pandemic may well change this picture. The sheer volume of cases handled via telehealth technology has reached unprecedented levels. Probability alone suggests that claims will increase. That’s all the more true as providers push the envelope, addressing an increasingly broad array of clinical problems in this manner. Another contributor to a likely increase in claims activity is that, among the many providers serving patients in this way, the percentage of inexperienced and untrained or modestly trained professionals is also increasing. The evidence so far is that telehealth has become far more popular among both patients and professionals than was ever the case pre-pandemic, suggesting that historically high levels of utilization will probably continue. These trends suggest that exploring this topic is particularly timely and useful.

The webinar by Joseph P. (Joe) McMenamin, MD, JD, will consider both professional and product liability theories that can be, and likely will be, asserted against providers, manufacturers, and distributors. Joe will examine how these theories can be adapted to services never dreamed of when these causes of action originally arose, what proof sources are likely to be relied upon, and what defenses are apt to be most often invoked. From those considerations, Joe will explore possible avenues to risk reduction.

Webinar Objectives

In the U.S., tort litigation is of course an enormous problem for healthcare institutions and professionals, as it is for Pharma, MedTech, Biotech, and the providers of the platforms used in distance care. As suggested above, there is reason to anticipate that telemedicine’s nearly spotless record to date may change in the not-too-distant future. The problems we will consider include the legal theories that may be asserted against defendants, the likelihood of their success, the ways by which prospective defendants can identify and manage their risks, and how they might reasonably transfer risk.  During the webinar Joe, will also consider defenses that might arise in such litigation and their potential to prevent adverse findings.

Webinar Agenda

• A brief description of distance care
• Identification of the elements of the relevant torts
• Exploration of such case law as currently exists
• Analysis of claims to anticipate in future
• Analysis of defenses to such claims
• Insurance consideration

Webinar Highlights

• Why telemedicine has so far attracted relatively little interest from the plaintiffs’ bar
• Why that is likely to change
• What plaintiffs’ counsel will probably think about in entertaining a prospective client’s case
• What theories counsel will likely assert
• What defenses will be offered
• What proof sources the parties are likely to invoke
• How defendants can diminish their risk exposure
• Insurance

Who Should Attend

• Healthcare risk managers
• Hospital and health system telehealth directors
• Malpractice insurance underwriters
• Malpractice insurance adjusters
• Defense counsel
• Telehealth companies’ risk managers, provider relations professionals, sales personnel, CFOs, counsel
• Telehealth equipment companies’ risk managers, provider relations professionals, sales personnel, CFOs, counsel