Florida Medical Malpractice and Telehealth

What is Telehealth Under Florida Law?

The Coronavirus has caused businesses throughout the world to find new ways to deliver products and services to consumers.  The healthcare industry is no exception.  Though “telehealth” has been emerging technology for years, the Coronavirus has caused medical doctors to turn to telehealth now more than ever in an effort to deliver “contactless” medical care to patients.  According to a 2019 AMA study, telehealth was the fastest growing “place of care,” up 53% from 2016 to 2017.

In 2019, Florida passed Fla. Stat. § 456.47 which governs telehealth services delivered in Florida.  That statute defines telehealth this way:  “the use of synchronous or asynchronous telecommunications technology by a telehealth provider to provide health care services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration.”  Fla. Stat. § 456.47(1)(a).  Under the new law, telehealth does not include “audio-only telephone calls, e-mail messages, or facsimile transmissions.”  Fla. Stat. § 456.47(1)(a).

In theory, telehealth services could be offered by nearly any Florida healthcare provider, including acupuncturists, medical doctors, osteopathic physicians, chiropractors, podiatrists, optometrist, nurses, pharmacists, dentists, and many others.  Fla. Stat. § 456.47(1)(b).  The pros and cons of telehealth can be debated, but there is no doubt telehealth presents new challenges to medical providers and new risks to Florida patients.

Risks of Telehealth Which Might Lead to Medical Errors and other Medical Malpractice

Telehealth is relatively new.  Today there are competing technologies, inconsistent platforms, and varying uses for telehealth.  As with any new technology, there are learning curves, the potential for technology failures, and unanticipated consequences.  These are inherent risks anytime an industry tries to do more with less.  In the case of healthcare, telehealth allows medical doctors to reduce travel time and potentially see more patients than they otherwise could.  However, since medical providers using telehealth can provide services at multiple hospitals in multiple states, there is the potential for inconsistent communication standards, improper medical documentation, and uncertain hospital policies, customs, and practices.  Any breakdown in these areas can result in harm to Florida patients.

Can You Sue a Telehealth Provider Under Florida Law?

Yes.  Florida law imposes on telehealth providers a “duty to practice in a manner consistent with his or her scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to patients in this state.”  Fla. Stat. § 456.47(2)(a).  This means telehealth providers are held to nearly the same standards as Florida healthcare providers who treat patients in person.  Therefore, if a telehealth provider causes injury or death to a Florida patient by failing to meet the prevailing professional standard of care (i.e. commits malpractice), that provider can be sued for medical malpractice under Florida law.   To read more about Florida medical malpractice cases in general, click here.

What is a Telehealth Provider Allowed to Do Under Florida Law?

Florida law permits telehealth providers to perform patient evaluations and prescribe controlled substances for the following reasons:

  1. The treatment of a psychiatric disorder;
  2. Inpatient treatment at a hospital;
  3. The treatment of a patient receiving hospice services; or
  4. The treatment of a resident of a nursing home.

Fla. Stat. § 456.47(2).  Beyond these rules, what a telehealth provider may or may not do is somewhat unclear.  We do know, however, that telehealth is regularly utilized by various types of medical doctors, including emergency physicians, radiologists, pathologists, allergists, gastroenterologists, and others.  According to the AMA, radiologists, psychiatrists, and cardiologists use telehealth more than any other practice area to interact with patients.

Lawyers at Viñas & DeLuca have been handling Florida medical malpractice cases for many years and have successfully obtained many multi-million dollar recoveries for clients hurt by medical malpractice.  If you or a loved one is considering a medical malpractice lawsuit, be sure to consult with legal professionals experienced in this area.  At Viñas & DeLuca, all consultations are free and confidential, and we are available 24/7 to meet or confer with you regarding your potential case.  Contact Viñas & DeLuca by calling (305) 372-3650. Or, you can chat with us online or complete our Free Case Evaluation Form and we will contact you.

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