Telehealth and Malpractice: Can You Sue for Virtual Care Errors?

As telehealth grows, so do questions about legal responsibility for medical mistakes made online.

Telehealth is the use of technology—such as video calls, phone consultations, mobile apps, or remote monitoring devices—to provide healthcare services without requiring in-person visits. It’s essentially “virtual healthcare” that allows patients to consult with doctors and other providers from home, work, or anywhere with an internet connection.

Telehealth has been around in some form since the 1960s, when early experiments used television and radio links to connect patients and doctors in remote areas (such as NASA monitoring astronauts’ health remotely). However, it remained limited due to technological and regulatory constraints.

However, when the COVID-19 pandemic struck in 2020, telehealth became much more widely used. The need for socially distanced care, combined with emergency changes to privacy laws and insurance coverage, caused a massive surge in telehealth availability. In the U.S., telehealth visits increased by more than 4,000% in early 2020, and many of those changes have remained, solidifying telehealth as a mainstream option for delivering care.

How many patients and physicians are using telehealth for medical care?

The CDC reports that 37% of U.S. adults used telehealth in 2021. In 2022, a report by the U.S. Department of Health and Human Services (HHS) indicated that one in four adults between the ages of 18 and 64 had at least one telehealth visit in the previous year. In rural communities, the use of telehealth rose more than 600% between 2019 and 2021. 

The reason for this astronomical growth? Aside from the pandemic, 72% of patients who used telehealth said they were satisfied with their experience, according to the American Medical Association in 2022.

Features of telehealth

Features of telehealth
Video or phone appointments	Patients meet with healthcare providers via secure video platforms
Remote monitoring	Devices like blood pressure cuffs, glucose monitors, or wearables send health data directly to providers
Mobile health apps	Apps allow patients to manage prescriptions, monitor symptoms, and communicate with providers
Access to specialists	A patient could consult with a specialist who isn’t available in their local area
Benefits of telehealth
Convenience	No travel required, which saves time and effort
Access	Ideal for people in rural or underserved areas
Reduced exposure	Minimizes risk of spreading or catching contagious illness
Continuity of care	Allows for easier follow-up visits and management of chronic disease
Examples of telehealth visits
A video appointment with a primary care doctor for cold or flu symptoms
Virtual mental health therapy sessions
Dermatology consult by sending photos of a skin condition
Post-surgery follow-up appointments by video check-in

Telehealth medicine and medical malpractice

Medical malpractice occurs when a licensed healthcare professional’s or facility’s action (or inaction) is negligent, deviates from the standard of care, and harms a patient. 

This could include (but isn’t limited to) the failure to diagnose or the misdiagnosis of an illness, misreading or disregarding lab results, dosing or prescribing medication incorrectly, failure to warn a patient of known risks, and similar. However, telehealth presents challenges that are different from those typically presented in an in-person medical setting. The rapid rise of telehealth has transformed healthcare delivery, which offers patients greater access and convenience. However, this shift is a new frontier for medical malpractice claims.

As more providers diagnose and treat patients online, questions of liability, standard of care, and informed consent are changing, too.

What are some common medical malpractice claims in telehealth?

• Misdiagnosis or delayed diagnosis due to a lack of physical examination
• Failure to obtain informed consent or explain telehealth limitations
• Inadequate follow-up or referral to in-person care
• Breach of confidentiality, data privacy violations, or inadequate documentation through insecure digital platforms

Legal standards and challenges associated with telehealth

Courts and licensing boards generally expect telehealth providers to deliver the same level of competence, diligence, and medical judgment as they would in person. If a provider fails to meet this standard, they may be liable for medical malpractice, just as they would be in a traditional setting.

In fact, several states—including California, New York and Texas—have statutes or case law that indicate that the standard of care doesn’t change simply because the interaction was virtual and not in person. 

In a malpractice lawsuit, the court wants to know: Would a reasonably competent provider in the same field have acted the same way under similar circumstances—even using telehealth tools?

In other words, malpractice laws apply regardless of the medium; geographic location does not shield a doctor from liability.

Some states require providers to inform patients about the limitations of telehealth and offer alternatives if necessary. Failing to do so may also be considered negligence.

Jurisdictional questions in telehealth

Telehealth often crosses state lines, which raises legal questions about jurisdiction. A provider must be licensed in the state where the patient is located. Practicing without appropriate licensure—even inadvertently—can lead to both malpractice claims and regulatory penalties.

As a result, malpractice insurers now emphasize verifying state-by-state licensing.

Your medical chart should remain intact, even for telehealth visits

Telehealth visits must be thoroughly documented—just like in-person visits. Failure to log symptoms, treatment plans, or patient instructions can weaken a provider’s legal defense if a malpractice claim is filed.

Why these lawsuits matter

Each of these lawsuits highlights these legal principles:

• Telehealth has the same legal obligation as in-person medicine; 
• Courts apply the same negligence standards to telemedicine as they do to in-person care; and
• A provider must adapt their protocols to account for what can’t be done virtually—such as in-person exams or emergency referrals.

Informed consent and continuity of care failures in telehealth

Claims are emerging that telehealth providers failed to inform patients about the limitations of telehealth. This is of particular concern for asynchronous or app-based care. For instance, there are lawsuits that claim patients weren’t told that a telehealth visit could miss an important diagnosis because the provider can’t listen to the lungs or heart, can’t check a rash in person, etc. 

There are now some jurisdictions that mandate telehealth-specific informed consent, especially for high-risk specialties like psychiatry or dermatology.  

There are also lawsuits related to inadequate documentation and failure to follow up as key breaches of duty in telehealth. For instance, a 2022 New York lawsuit alleged that the provider failed to follow up with a telehealth patient after prescribing opioids, which violated both medical and regulatory standards. This has led to a new set of standards for documenting telehealth interactions as thoroughly as in-person care.

What types of telehealth are the most likely to be subject to lawsuits?

The specialties that tend to have the highest risk of telehealth-related lawsuits are mental health and pediatrics. Mental health can be risky because telehealth isn’t always able to follow suicide prevention protocols. Sometimes, pediatrics is a difficult specialty for telehealth because of the prevalence of infections and rashes in children that can be difficult to diagnose online.

Outside of specialties, there are persistent issues in medication management with respect to failure to check vitals before prescribing, and delayed diagnosis because of reliance on photo-only or chat-based applications.

What to do if you suspect telehealth medical malpractice

If you believe you’re a victim of medical malpractice after a telehealth encounter, you should take the following steps.

1. Seek medical help immediately
   
   If you’re still experiencing symptoms, complications, or side effects, get a second opinion or follow-up care in person. Document your condition with photos, notes or new test results.
2. Request your medical records
   
   Request a complete copy of your telehealth visit records (including video recordings, chat logs, prescriptions, and notes). Under HIPAA, you’re entitled to access these within 30 days. Records can help determine whether the standard of care was breached. [How to Request Records for a Personal Injury Claim]
3. Document everything
   
   Begin and maintain a personal record that includes:
   
   - All communications with the telehealth provider or app
   - Dates and times of appointments, diagnoses, prescriptions, and any symptoms
   - Screenshots, emails, or messages related to the care you received
4. Maintain evidence from the platform
   
   Log or download any interactions (including chat transcripts, emails, and portal notes). If the platform uses AI or automated responses, document how the encounter was conducted.
5. Consult a medical malpractice attorney
   
   Choose a lawyer with experience in telehealth malpractice or digital health liability. They can assess whether the provider failed to meet the standard of care, practiced without a license in your state, or missed a diagnosis or failed to properly follow up.
6. Be aware of time limits
   
   Each state has a statute of limitations for medical malpractice lawsuits—typically one to three years from the date of the harm or its discovery. There are some states—including Florida and California—that have specific rules for telemedicine liability.
7. File a complaint with the state medical board
   
   If you believe there was misconduct or negligence, you might consider reporting the provider to your state medical licensing board. You can also report to the Federal Trade Commission (FTC) or Health and Human Services Office for Civil Rights if privacy or licensing laws were violated.

Importantly, telehealth malpractice is evaluated under the same standard of care as in-person, traditional healthcare. If the provider did not adequately assess your condition or failed to refer you for in-person care when needed, you might have a claim, and patients harmed by AI-driven or app-based care (in other words, not reviewed by a human doctor) might also have a claim against the platform itself.

As telehealth continues to reshape the landscape of healthcare delivery, patients must remain informed and vigilant about the quality of care they receive—even when it’s virtual. While technology offers convenience and expanded access, it does not lessen a provider’s legal or ethical responsibilities.

If you suspect you’ve been harmed due to negligent care in a telehealth setting, understanding your rights and taking swift action can be critical to protecting your health and seeking justice. As with all forms of medical care, the duty to “do no harm” still applies—whether in a clinic or through a screen.