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Fogel AL, Kvedar JC. Reported Cases of Medical Malpractice in Direct-to-Consumer Telemedicine. JAMA. 2019;321(13):1309–1310. doi:10.1001/jama.2019.0395
Direct-to-consumer (DTC) telemedicine enables any paying patient to obtain medical consultation and treatment via telephone, computer, or smartphone without a prior physician-patient relationship. Direct-to-consumer telemedicine services emerged in the early 2000s and have increased rapidly to several million patient visits annually.1,2 Physician concern about exposure to malpractice risk in DTC telemedicine has prompted many services to provide malpractice insurance with employment.2 Furthermore, researchers and regulators have raised concerns about DTC telemedicine, including substandard verification of patient identity, suboptimal diagnosis and treatment, and inadequate medical history taking, all of which have the potential to result in malpractice litigation.3 However, the malpractice risk of DTC telemedicine has not been studied.
We analyzed reported cases of medical malpractice in DTC telemedicine. A reported case is one in which a decision of the court is rendered that includes any judgment, ruling, opinion, dismissal, or other judicial action of the court. From October 1, 2018, to November 1, 2018, we queried the LexisNexis legal case database, which contains all reported cases from federal and state courts. We used 25 queries derived from the terms telemedicine, telehealth, malpractice, direct-to-consumer, DTC, direct-to-patient, internet, online, app, doctor, and physician and the names of 10 large DTC telemedicine services. Reported cases were first reviewed for material relevance to DTC telemedicine, and they were included if the case was brought by or against a DTC telemedicine service or representative, or if the case named a health care professional as a defendant in conjunction with the use of DTC telemedicine. Cases found to be relevant to DTC telemedicine were then reviewed for relevance to medical malpractice and were included if a health care professional or DTC telemedicine service was named as a defendant in a case of medical malpractice. The authors were solely responsible for the database queries, review of cases, and analysis.
We identified 551 reported cases. None involved claims of medical malpractice against DTC telemedicine services or their health care professionals.
In this study, no reported cases of medical malpractice related to DTC telemedicine were found. The study was limited by the inability to assess malpractice claims that were not reported, which includes those in process, decided in confidential arbitration, or settled prior to a court decision through mediation or otherwise. Since slightly more than 1 in 4 medical malpractice claims are associated with court decisions,4 the existence of claims without court decisions is therefore possible and was not accounted for in this study.
Several factors may account for the absence of reported cases of malpractice associated with DTC telemedicine. First, conditions amenable to care via DTC telemedicine may be at low risk for malpractice. The largest DTC telemedicine service typically treats “sinus problems, respiratory infections, allergies, and flu symptoms,” conditions unlikely to result in malpractice claims and typically managed by physicians in specialties with low malpractice risk.2,5 Specialists with high malpractice risk, such as neurosurgeons, are not available via telemedicine,5 and emergency telemedicine services, such as telestroke, are not available directly to consumers. Alternatively, the generally low-acuity conditions treated by DTC telemedicine may result in malpractice claims that are more likely to be resolved prior to a court decision.
Second, DTC telemedicine services often approach care in ways that likely reduce malpractice risk. For example, many DTC teledermatology services treat only acne and do not prescribe medications (eg, isotretinoin) that are associated with higher malpractice risk.6 Additionally, DTC telemedicine services often have stated policies not to prescribe controlled substances. Direct-to-consumer telemedicine services also provide routine documentation to patients advising them to seek an in-person consultation for any ongoing concerns.
This study found no reported cases of medical malpractice in DTC telemedicine. Further research on claims-level or telemedicine service–level data would provide additional insight.
Accepted for Publication: January 15, 2019.
Corresponding Author: Alexander L. Fogel, MD, MBA, 20 York St, Tompkins 2, Room 226, New Haven, CT 06510 (firstname.lastname@example.org).
Author Contributions: Dr Fogel had full access to all of the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.
Concept and design: Both authors.
Acquisition, analysis, or interpretation of data: Fogel.
Drafting of the manuscript: Fogel.
Critical revision of the manuscript for important intellectual content: Both authors.
Statistical analysis: Fogel.
Administrative, technical, or material support: Fogel.
Supervision: Both authors.
Conflict of Interest Disclosures: Dr Kvedar reports being on the advisory boards of Claritas Mindsciences, Medtronic Care Management Services, and Lumin Dx and being a member of the board of directors of b.Well Connected Health. No other disclosures were reported.