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Injury and Liability Risks with Virtual Healthcare

The COVID-19 pandemic forced professionals in many industries to adopt new ways of doing business. At Will Davidson LLP, our team of personal injury, insurance defence, and medical malpractice lawyers moved out of the office and into online spaces. The wider Ontario justice system adopted new virtual alternatives to in-person proceedings, some of them long overdue. And the healthcare system, which experienced disproportionate impacts from the virus’s onslaught, experimented with new ways of caring for non-COVID patients.

Virtual healthcare, the practice of seeing patients via video conferencing technology like Zoom, was central to Canadian doctors’ plans for treating patients outside of suddenly risky traditional healthcare settings. Sometimes called telemedicine or telehealth, the approach was quickly adopted across North America. According to the Legal Examiner telemedicine use in the United States jumped by 78 per cent from February to March 2020 and was still 38 times more common in July 2021 than during the final pre-pandemic month.

“With the pandemic, and the inability to see or the encouragement not to see patients in person unless absolutely necessary, telemedicine and all other virtual care methodologies have become very popular and very necessary,” explained CMPA general counsel Daniel Boivin to Canadian Lawyerin November 2020.

Virtual healthcare has many benefits. In addition to being safer than visiting a hospital during a pandemic, it is also more convenient for patients without easy access to a doctor, including those who are homebound or who live in remote settings. In theory, it also allows patients to choose from a broader roster of care providers; if you’re not comfortable with the oncologist in your community, you can always seek virtual care from a provider elsewhere in the country.

There are also budgetary implications for the provinces, which struggled before the pandemic to find sufficient funding for their healthcare systems. Indeed, Canadian governments could theoretically save billions of dollars if virtual care was adopted in the long term.

“Virtual care has become the de facto way to access healthcare, and that won’t likely change in a post pandemic world,” added Seamus Blackmore, Atlantic Canada Health Consulting leader at Deloitte, also to Canadian Lawyer.

But virtual healthcare also comes with risks, including some that medical malpractice lawyers warn could lead to lawsuits. In 2020, Canadian Lawyer talked to several subject matter experts about the potential for malpractice claims and what doctors can do to protect themselves and their patients. Numerous potential pitfalls were established, including risks of communication gaps due to shaky internet connections or language barriers, misdiagnosis issues related to the doctor’s inability to physically examine the patient, and more. The key to keeping patients safe and avoiding medical malpractice claims is in maintaining the same standard of care established for in-person interactions.

“That standard is judging whether a doctor’s treatment for a patient is reasonable and comparable to what another doctor would do in the same circumstances,” said one defence side lawyer. “The standard hasn’t changed, it’s just a different way of delivering health.”

Acknowledging when virtual care is insufficient will be essential to upholding that standard.

“Does care for that particular patient require the physician to lay their hands on that patient?” one law firm partner asked. “Does the physician have to call someone in depending on what happened in the virtual setting? It’s going to be incumbent upon the physician to make that decision.”

“The threshold for passing that patient on or getting them into the hands of some other service may well be lower in the virtual world,” another medical malpractice lawyer observed to Canadian Lawyer.

And it’s not just the risk of physical harm that patients should be aware of – security and privacy concerns have also been raised by medical malpractice lawyers across the country. Private medical information is often required for doctors to provide robust, accurate virtual diagnoses, and the security protocols used by platforms like Zoom are not as robust as those in use in hospitals and doctors’ offices. Privacy breaches can cause significant harm and may lead to medical malpractice claims if caused by the negligence or error of another party.

Contact Will Davidson LLP

If you’ve been injured in a medical setting – virtual or physical – contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our team of experienced personal injury and medical malpractice lawyers may be able to help.

Image: Shutterstuck

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