The effect of virtual medical care on the standard of care and medical malpractice

Ever since the invention of the telephone, there has likely been some form of "virtual" medical care available to patients who, for some reason, can't get to the doctor's office. Whether it is a physician phoning you with your test results or telling you that a prescription has been sent to your pharmacy, that's virtual care.

But the Covid-19 pandemic has changed, rather abruptly, the very nature of virtual care. Daniel Boivin, general counsel for the Canadian Medical Protective Association and a partner at Gowling WLG, says, "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."

Medical malpractice experts say the current laws surrounding medical malpractice apply to virtual care as they do in-person care. However, Boivin and others say that physicians and other health-care professionals need to understand how to navigate this method of providing care and provide the most appropriate treatment to their patients or clients.

At a recent CMPA webinar panel on lessons to be learned about virtual care as a result of Covid-19, Seamus Blackmore, Atlantic Canada Health Consulting leader at Deloitte, put it this way: "The genie is out of the bottle and has granted the wish for an easily accessible, convenient health-care system.”

Blackmore says the pandemic has moved up the adoption of virtual care by a decade in just six months. "Barriers that have long stood in the way of fee codes, privacy and security concerns, and technology have proven to be bubbles. Virtual care has become the de facto way to access healthcare, and that won't likely change in a post pandemic world."

Katherine Serniwka, an associate in the professional practice group at Siskinds LLP in London, Ont., says the physicians and other health-care professionals may have been "forced" into providing care virtually earlier than what might have happened without a pandemic. Still, she doesn't see it ending any time soon. 

"I think they are going to be engaging in virtual care for as long as possible and as long as they need to as a result of the pandemic," she says. But even when the pandemic resolves, virtual care is here to stay, thanks to the alternatives it allows practitioners, the convenience it provides patients and the potential cost savings it can provide governments who spend billions on health-care annually.

Serniwka's colleague at Siskinds, partner Jill McCartney, whose practice focuses on the plaintiff side of medical malpractice, says the issues around providing care in a virtual format aren't that different than providing care to someone in an in-person setting. 

"It comes down to 'standard of care.' Does care for that particular patient require the physician to lay their hands on that patient?"? 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 CMPA notes that regulatory bodies across the country have long established that the standard of care does not change when using virtual care. Still, McCartney says the key is for physicians to establish whether that patient is suitable for virtual care through their virtual meeting.

"It's not unlike other circumstances that we could think of in a medical context," she says, "but now it is a very important consideration for physicians when they're speaking to someone over the phone or via visual conference calls."

Darryl Cruz is a partner at McCarthy Tétrault LLP in Toronto, who acts on behalf of the defence in medical malpractice cases. He says, in general, the current law around the concept of standard of care in a virtual or in-person setting is the same. 

"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,” he says. "The standard hasn't changed, it's just a different way of delivering health care."

However, he does note that the regulatory bodies and those organizations representing specialties haven't had a chance to develop guidelines to help physicians walk their way through any specific issues related to virtual care. "The procedures will be developed over time, but right now, they are in their infancy.

"And every area of medicine is different — a surgeon might have one idea and a family doctor another, and how each area uses virtual care could turn out to be quite different."

Duncan Embury, the lead medical malpractice lawyer with Neinstein Personal Injury Lawyers, says the standard of care for both the in-person or virtual options is the same. However, "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." 

As a result, physicians are obligated to engage in a "fine balancing act," he says. They will need to ask the right questions, take proper notes and "make any other considerations revolving around his or her ability to ensure the quality of care and standard care [are] met in a virtual setting."

He adds that every patient scenario will be different in assessing whether the correct standard of care can be provided in a virtual setting. Factors such as language skills and ability to articulate symptoms will need to be gauged, Embury says, and physicians will have to be mindful of virtual care's limits. Proper documentation of the visit and adequately explaining to patients the potential challenges of a virtual encounter will be essential to physicians to provide the appropriate care standard.

Another factor could be the length of the doctor-patient relationship. Is it a long-standing relationship or a first-time virtual visit to a walk-in clinic? "The question of trust between a doctor and a patient is important, as is the length of that relationship," says Embury.

Right now, there isn't a lot of case law on virtual care and malpractice, says Embury, and that will likely take a few years to sort out. But in time, he says, there probably will be cases regarding virtual care that end up in court. "And the question will be, 'how do we assess what is a reasonable standard of care when someone was doing something for good reason on a virtual platform versus in person?" he says.

Another issue with virtual care deals with concerns that certain platforms aren't entirely secure or they are not compliant with privacy guidelines, Embury says. Also, consideration will need to be given to jurisdictional issues. A patient may be in a different regulatory jurisdiction than the physician, perhaps another province or even another country.

"The virtual treatment of Canadians who are located outside of Canada, for instance, raises some interesting conflict of law issues,” he says.

Despite all these concerns, lawyers suggest that Canada's virtual care will only get better and more comprehensive as different technologies and platforms emerge. As they have been during the pandemic, governments are generally supportive, as they see it as a way of cutting down the cost of some routine aspects of health care.

Says Cruz, "Think about people who live in remote locations, how better virtual care could be advantageous because it suddenly gives you greater access to a doctor who you're comfortable with from farther away."

Warming up to virtual care. If you had the choice in the future, which would you choose as the first way to seek a doctor’s advice?

58% - in person

20% - phone

14% - videoconference

8% - email or text

Better off with virtual care? What would be the impact of virtual care on the overall level of health of Canadians

A lot better – 10%

Better – 27%

Neither – 48%

Worse – 13%

A Lot worse – 3%

Source: Canadian Medical Association poll of 1,800 Canadians, May 2020