Virtual medicine's rise — and its malpractice risks

Since the COVID-19 pandemic, our healthcare system is no longer a stranger to virtually provided medical care. The College of Physicians and Surgeons of Ontario (CPSO) define “virtual care” as “any interaction between patients and/or members of their circle of care that occurs remotely, using any form of communication or information technology…with the aim of facilitating or providing patient care.” The College of Nurses of Ontario (CNO) provides a similar definition, stating that virtual care is “the delivery, management and coordination of health services offering client-centred care using electronic information and digital telecommunication technologies.”

 As virtual care moves from novel concept to a permanent pillar of healthcare delivery, it begs the question – how do we uphold care standards and maintain patient safety in the virtual-sphere?

Our evolving virtual care landscape

As a result of the COVID-19 pandemic, virtual care use in Canada has increased from 10-20 percent in 2019 to 40 percent in 2021[1], and it is here to stay. In response to these changing realities, physician and nurse regulators developed policies and guidelines for the unique virtual care setting.

Virtual care can refer to many forms of communication, including telephone, videoconferencing, and instant messaging. The CNO also considers artificial intelligence (AI) tools as a means of virtually provided care. As virtual care is being used to conduct consultation, deliver information and transmit information, new considerations about the standard of care, security of confidential information, and appropriate record keeping, need to be accounted for.

Same applicable standard of care

In the CPSO’s Advice to the Profession on Virtual Care, it stated that virtual care includes all medical services, including assessing, diagnosing, giving advice, teleradiology, telemonitoring, and professional consultations. The CNO defines nursing care as care provided by a nurse, which includes, but is not limited to, assessment, planning, delivery, monitoring, evaluation and care coordination.

The standard of care remains the same whether a physician or nurse is providing care in-person or virtually. Over and above the applicable standard of care for these services, physicians and nurses must also appreciate that virtual care requires a “distinct” set of skills including the ability to safely use technology in a way that allows them to gather information, provide appropriate care, and protect private patient information. To meet the standard of care, providers must also recognize the limitations of virtually delivered care and take the appropriate steps to rectify those limitations.

Errors and emerging risks of virtual care

One of the biggest drawbacks of virtual care is the inability to conduct physical examinations. In cases where a patient presents with symptoms giving rise to a wide range of differential diagnoses, a physical examination may be required to rule out conditions and reduce risk of harm. For example, in a patient presenting with acute foot pain and swelling, a physician may want to conduct vital signs or assess the area for recent injury to rule out infection. Other situations where an in-person assessment or physical examination are often standard of care are: pre-operative and pre-procedural assessments, pain management assessment and evaluation, and other complex clinical encounters.[2]

Moreover, virtual care is not amendable to any condition which may require emergency care, such as chest pain, shortness of breath or loss of neurologic function.[3] It is important for virtual care providers to recognize the signs of an emergent condition and direct these patients in accordance with their care needs. If there is a likelihood that the patient will require urgent/semi-urgent escalation, the virtual care provider is responsible for properly informing the patient of the urgency of their condition and directing them to in-person options.[4]

There is also the issue of informed consent. In a review conducted by the Canadian Medical Protective Association (CMPA), the failure to obtain informed consent for virtual visits is amongst one of the commonly criticized pitfalls of virtual care by peer experts.[5] Physicians and nurses are required to inform patients about the benefits, risks and limitations of virtual care, including the limitations on privacy. Consent can be express or person implied, meaning that if a patient proceeds with the encounter after the aforementioned discussion, they may have provided implied consent.

Consent must also be documented where less secure technology (i.e. information is non-encrypted) is used to deliver virtual care. However, consent for every subsequent encounter is not necessary.[6] In the spirit of standardizing virtual care technology across the province, Ontario Health has developed a list of verified virtual visit platforms to help providers identify platforms appropriate for clinical use that meet the standard for privacy, security, technology and functionality. Ultimately, virtual care provides a valuable platform that increases access care. But it is not without flaws. There must be a focused effort to ensure virtually provided care is safe, appropriate, and in line with the current policies and guidelines.

This article was provided by Neinstein LLP