By Norelle Saada and Aakanksha Deoli 

Telehealth gained popularity during the pandemic as virtual visits became a necessity to limit exposure. It soon grew exponentially and reached a record high, where telehealth utilization increased by 7060% nationally from 2019 to 2020 as it offered safer, more convenient, and accessible alternatives to continue receiving care during the pandemic. However, the sudden expansion of telehealth also brought to light several risks and challenges, including medical malpractice.   

Misdiagnosis is the most common medical malpractice risk associated with telehealth. A study of 28 telehealth-related medical malpractice claims revealed that over 70% of the claims were related to diagnosis. Moreover, for health conditions like cancer and stroke, misdiagnosis accounted for 45% of telehealth medical malpractice claims in 2021.  Twelve million Americans are misdiagnosed annually, and about half of them face severe harm because of the misdiagnosis. Misdiagnosed patients often experience a delay in their recovery or receive treatment for something they do not have.   

Telehealth offers limited physical observation and may hinder physicians’ ability to assess patients’ conditions correctly. Physicians may over-rely on technology, such as Electronic Health Records or other technology alerts, in an attempt to compensate for this impediment, which in turn may increase the possibility of misdiagnosis. The Institute for Healthcare Improvement (IHI) suggests inviting the patient to show health-related behaviors in the context of their home and engaging a family member or patient advocate to prevent misunderstanding of the patient’s symptoms during a virtual visit. The IHI also encourages training providers in telehealth best practices to offer a limited physical exam virtually and identify clues about patient symptoms when observing them in their home environment.   

Physician burnout was at an all-time high during the pandemic; nearly 50% of doctors reported burnout in 2020. A recent study concluded that telehealth exacerbated burnout among physicians as they had to work beyond regular hours to accommodate more virtual visits or complete EHR-related administrative tasks. Burnout often translates to lower patient satisfaction, extended recovery times for surgery, and higher rates of reported errors 

Furthermore, patients are hesitant with their trust in diagnostic accuracy. A separate study found that 40% of the respondents (n=2000) expressed concerns regarding receiving accurate treatment or diagnosis via telehealth. Automating tasks, for example, enabling transcriptions when possible, involving medical students, staff members, and administrative interns, is a good starting point to alleviate physician burnout associated with telehealth.   

Data breaches also contribute to medical malpractice and are quite common in the healthcare industry as healthcare servers continue to be a popular target for cyber hackers, contributing to medical malpractice. According to the Ponemon Institute’s recent report, 67% of patient care organizations in 2021 were a target for cyberattacks, especially during COVID-19. The instances of malpractice related to security and privacy are increasing, particularly with the increased use of virtual care. About 45 million people were affected by healthcare data breaches in 2021, compared to about 14 million in 2018 and 34 million in 2020.   

Additionally, data trackers, if embedded in telehealth platforms, put sensitive patient information at risk when using a virtual health platform. According to a recent analysis by The MarkUp, 49 of the 50 virtual care websites for prescription drugs had data trackers and were sharing sensitive patient information with tech giants like Google, Facebook, TikTok, etc. In addition, several companies, like Law Technology Today, Jama Network, and Bloomberg Law, have expressed their concerns regarding the rise of legal implications with virtual care. To prevent cybercrimes, healthcare organizations must assess security issues regularly and implement more secure software and endpoint protections. Educating employees is critical in ensuring data security; therefore, frequent training on cybersecurity is recommended.   

Medical malpractice with telehealth became more apparent with the recent growth in telehealth utilization. Telehealth has shown its benefits, especially the ease and accessibility that it offers, and it is evident that patients are likely to continue using it post-pandemic. Therefore, the medical malpractice concerns with telehealth have become a key priority and must be addressed through policy changes and organizational reforms.     


 Norelle Saada is an undergraduate student at Edward J. Bloustein School at Rutgers, The State University of New Jersey.

Aakanksha Deoli, MHA is an Instructor of Teaching and UG Internship Coordinator at Edward J. Bloustein School at Rutgers, The State University of New Jersey.