Telehealth expanded rapidly during and after the 2020 public health emergency, and that expansion carried both benefits and new risks. Virtual visits that eliminate geographic barriers to care also eliminate the physical examination, the in-person observation, and the hands-on diagnostic capability that underpin much of the traditional standard of care in medicine. When a telehealth encounter results in a missed diagnosis, a delayed escalation to in-person care, or a prescribing decision made without adequate clinical information, the question of what the standard of care required is more complex than in a traditional malpractice case, because the standard itself is still being developed by courts, regulators, and medical boards.
What Standard of Care Applies to Telehealth?
The foundational question in a telehealth malpractice case is whether the practitioner will be held to the same standard of care as an in-person provider, or whether the court will recognize a modified standard that accounts for the inherent limitations of a virtual encounter. The emerging consensus in most jurisdictions is that the standard of care for a telehealth provider is the same standard as would apply to an in-person provider in the same specialty for the same condition. The telehealth format does not lower the standard; it changes the context in which the standard must be met.
The practical implication of this rule is significant. A practitioner who conducts a telehealth visit for a patient presenting with chest pain, shortness of breath, and dizziness cannot rely on the telehealth format as an excuse for failing to diagnose an acute cardiac event that would have been apparent to a reasonably careful in-person examiner. The question is not whether a remote examination is inherently limited, but whether the limitation should have caused the provider to require an in-person evaluation before making a clinical decision.
Failure to Escalate as the Primary Theory
The most common theory in telehealth malpractice cases is failure to escalate: the practitioner conducted a virtual visit, evaluated the patient's symptoms, and made a treatment decision without referring the patient to in-person evaluation, an emergency room, or an urgent care center when the clinical presentation required it. The failure-to-escalate theory is the telehealth analog to the failure-to-consult and failure-to-refer claims in traditional malpractice, and the liability framework is similar.
To establish the escalation failure, plaintiff experts must establish:
- That the patient's documented symptoms and clinical history, as presented during the telehealth encounter, met the threshold at which a reasonably competent provider in the same specialty would have directed the patient to seek in-person care
- That the defendant provider had sufficient clinical information at the time of the encounter to recognize that threshold
- That the provider's failure to escalate caused a delay in diagnosis or treatment that worsened the patient's condition or caused an injury that in-person evaluation would have prevented
Prescribing Without Adequate Examination
Remote prescribing is a specific category of telehealth liability. The Ryan Haight Act and its implementing regulations under the Controlled Substances Act have historically restricted prescribing of Schedule II-V substances via telemedicine without a prior in-person examination, though those restrictions were modified by emergency waivers during the public health emergency and are the subject of ongoing regulatory activity by the DEA. Beyond controlled substances, state medical board regulations on prescribing via telehealth vary, and the interaction between federal law, state regulation, and standard of care creates a layered analysis.
Cases involving prescription errors in telehealth encounters share structural similarities with in-person prescribing malpractice: the provider should have gathered enough clinical history to identify contraindications, interactions, and dosage risks before prescribing. The difference in telehealth is that the clinical history was gathered without physical examination, lab data available at the time of the visit, or a contemporaneous assessment of the patient's physical state. When the provider prescribed based on information that a reasonable practitioner would have found inadequate for a prescribing decision of that risk level, the standard of care claim is built on the gap between what was known and what was needed.
Jurisdiction and Choice of Law
Telehealth encounters often involve a provider licensed in one state and a patient located in another. This creates choice-of-law issues that do not arise in traditional malpractice cases. Most courts that have addressed the question apply the law of the state where the patient received care (the patient's location at the time of the encounter) to determine both the standard of care and the procedural rules that govern the malpractice claim, including any pre-suit notice requirements, expert affidavit requirements, or caps on damages.
The Interstate Medical Licensure Compact, which has been adopted by a substantial majority of states, allows physicians to obtain expedited licensure in member states and practice across state lines. A physician practicing under a Compact license is subject to the disciplinary jurisdiction of both the state of principal licensure and any state where they hold a Compact license. For malpractice purposes, the applicable standard of care remains that of the patient's state regardless of the Compact's licensure structure.
Expert Witness Requirements
Most states require that a malpractice expert be licensed in the same specialty as the defendant or have substantial familiarity with the standard of care in that specialty as applied in the applicable jurisdiction. In telehealth cases, plaintiff counsel should select an expert who has practiced in the specific specialty at issue and who has direct experience with telehealth delivery in that specialty. An expert who has only practiced in traditional in-person settings may be vulnerable to a challenge on the grounds that they lack familiarity with the telehealth standard of care, which is precisely the standard the defense will argue is lower than the in-person equivalent.
Telehealth-specific liability developments and published verdicts are tracked at lawyerstrend.com/category/case-law-settlements. The full medical malpractice standard of care framework, including expert assembly and causation structure, is at lawyerstrend.com/category/medical-malpractice. For multi-state practice licensing issues affecting case forum selection, see lawyerstrend.com/category/practice-operations.