Medical Malpractice in North Carolina: Do Sick North Carolinians Stand to Face a Lower Standard of Care with Telemedicine Apps?

September 15, 2015

Are you or your child sick and in need of a doctor? Soon, patients will not need to look any farther than their blue jeans pockets. Telemedicine is a method of providing healthcare services using two-way video such as programs like Skype, email, smartphones, and other wireless tools. The most recent development in telemedicine is the healthcare smartphone app, which would provide a doctor’s advice and diagnosis through an app on any smart phone.  By next year, smart phone apps could be released by UnitedHealth Group Inc. and Blue Cross-Blue Shield coverage provider Anthem Inc., which would be available night and day, from work or home, to answer your medical questions.

Primary care has become the fastest growth area for telemedicine in part because of the convenience it offers — a chance to seek help without leaving home or work and to avoid sitting in a waiting room filled with other sick people.

While telemedicine is the most convenient method of healthcare to date, will it change the minimum standard of care doctors are required to meet? In North Carolina, under N.C. Gen. Stat. § 90-21.12, doctors are liable for medical malpractice law suits if they do not meet the “standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.”
Until recently, in order to get a doctor’s diagnosis or prescription, a sick person had to visit with a doctor face to face. With telemedicine, patients began being able to seek medical advice through video chats or email. Now, with the potential introduction of telemedicine phone apps, a whole new medical standard could be created.
Telemedicine apps would present brand new circumstances for medical care providers because by using these apps, the patient would never physically be seen by a doctor. Under N.C. Gen. Stat. § 90-21.12, the “same or similar circumstances” element of a medical malpractice claim could be developed to define telemedicine app doctors as working under a different set of circumstances than traditional doctors. In addition, the statute could be determined to define the telemedicine app community of doctors as a different community than traditional doctors. Ultimately, if telemedicine app doctors are considered to be working under different circumstances than traditional doctors and are considered a different community than traditional doctors, they could have their own, different standard of care.
Potentially, the standard of care could end up not only differing between traditional and telemedicine app doctors, but it could end up being a lower standard of care for telemedicine professionals. For example, many traditional doctors believe that telemedicine will lead to increased rates of misdiagnosis.  Misdiagnosis is more likely through telemedicine apps because the app creates conditions where a doctor never physically examines the patient. If misdiagnoses were to become a common occurrence through telemedicine apps, then doctors in the telemedicine app community might consider misdiagnoses reasonable as an inevitable downside to doctors not physically examining the patient. If that scenario were to become a reality, patients could have a difficult time finding successful legal recourse because their misdiagnosis would not be considered below the standard of care.
North Carolina courts need to ensure that when these apps are released and become popular, the standard of care for telemedicine app doctors does not fall below the standard for traditional doctors. Although the process for diagnosing and treating patients is markedly different through telemedicine apps, it cannot outweigh the importance of protecting patients from medical care that does not meet basic standards of the profession. Medical technology develops faster than the law, but the first priority should always be guaranteeing patient safety and providing avenues for adequate legal recourse.