Telehealth Malpractice in New York: Liability for Virtual Care Errors
Telehealth has expanded access to care, but it also creates new opportunities for medical errors. When providers fail to examine adequately, misdiagnose, or fail to recognize emergencies during virtual visits, the results can be devastating. Learn about telehealth malpractice and the standard of care.
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Telehealth Malpractice in New York: Liability for Virtual Care Errors
Telehealth -- the delivery of healthcare services via video, phone, or other remote technologies -- has grown exponentially since the COVID-19 pandemic. While telehealth has expanded access to care for many New Yorkers, it has also created new opportunities for medical errors. When a healthcare provider fails to meet the standard of care during a telehealth visit -- by misdiagnosing a condition, failing to examine the patient adequately, or prescribing the wrong medication -- the results can be just as devastating as errors made in person.
A telehealth malpractice lawyer in NY helps patients who have been harmed by virtual care errors hold the responsible providers accountable. At MDLaw Firm, we handle telehealth malpractice cases throughout New York, working with medical experts and technology specialists to build strong cases.
This page explains what telehealth malpractice is, the standard of care in telehealth, and when virtual care errors constitute malpractice.
[Image: patient and doctor interacting via telehealth video call]
[Link to: /medical-malpractice/what-is-medical-malpractice] [Link to: /misdiagnosis-lawyer]
What Is Telehealth Malpractice?
Telehealth malpractice is medical negligence that occurs during the delivery of healthcare services via telehealth -- including video visits, telephone consultations, remote monitoring, and asynchronous (store-and-forward) communications.
Like all medical malpractice, telehealth malpractice requires proving that the provider deviated from the accepted standard of care and that the deviation caused harm. The standard of care in telehealth is generally the same as the standard of care in in-person care -- the provider must exercise the same degree of skill, care, and diligence that a reasonably competent provider would exercise under similar circumstances.
However, telehealth has unique features that can create additional risks:
- Limited physical examination: The provider cannot physically examine the patient, which can lead to missed findings. - Technology limitations: Video quality, audio quality, and connectivity issues can affect the quality of the visit. - Reduced visual cues: The provider may miss subtle visual signs (pallor, jaundice, distress) that would be apparent in person. - Limited access to diagnostic tests: The provider may not be able to order or interpret tests during the visit. - Communication challenges: Video and audio can create communication barriers, particularly with patients who have hearing impairments, language barriers, or cognitive impairments. - Prescribing limitations: The provider may prescribe medications without adequate examination or monitoring. - Cross-state licensing issues: The provider may be licensed in one state but treating a patient in another. - Emergency limitations: Telehealth is not appropriate for emergencies, and failure to direct the patient to emergency care can be negligence.
The Growth of Telehealth in New York
Telehealth has grown dramatically in New York, driven by:
- The COVID-19 pandemic: Which necessitated remote care to reduce virus transmission. - Regulatory changes: New York relaxed telehealth regulations during the pandemic, allowing more providers to offer virtual care. Many of these changes have been made permanent. - Insurance coverage: New York requires insurers to cover telehealth services, and Medicaid covers telehealth in New York. - Technology adoption: Patients and providers have become more comfortable with video visits and remote monitoring.
New York has specific laws and regulations governing telehealth, including:
- Public Health Law 2999-b: Establishes standards for telehealth in New York. - Education Law: Governs the licensure and practice of healthcare providers who deliver telehealth services. - Insurance Law 3217-h: Requires insurers to cover telehealth services. - DOH guidance: The New York State Department of Health provides guidance on telehealth practice.
Despite these regulations, telehealth malpractice remains an emerging area of law, and the standard of care is still evolving.
The Standard of Care in Telehealth
The standard of care in telehealth is generally the same as the standard of care in in-person care -- the provider must exercise the same degree of skill, care, and diligence that a reasonably competent provider would exercise under similar circumstances.
However, the standard of care in telehealth also includes considerations specific to virtual care:
- Appropriate patient selection: The provider must determine whether telehealth is appropriate for the patient condition. Some conditions require in-person examination (e.g., acute abdominal pain, chest pain, neurological deficits) and should not be managed via telehealth. - Adequate history-taking: The provider must take a thorough medical history, including the chief complaint, history of present illness, past medical history, medications, and allergies. - Maximizing the virtual examination: The provider should use the available technology to perform as thorough an examination as possible -- asking the patient to show the affected area, take their own vital signs (if possible), and describe their symptoms in detail. - Recognizing the limits of telehealth: The provider must recognize when telehealth is insufficient and direct the patient to in-person care or emergency care. - Documentation: The provider must document the telehealth visit, including the technology used, the patient location, and the reason for the visit. - Informed consent: The provider must obtain the patient consent to telehealth services, including explaining the risks and limitations. - Prescribing safety: The provider must exercise the same caution in prescribing medications via telehealth as in person, including checking for allergies, drug interactions, and appropriate dosing. - Follow-up: The provider must arrange appropriate follow-up, particularly if the diagnosis is uncertain or the condition may worsen.
Failure to meet any of these requirements may constitute negligence.
Common Types of Telehealth Malpractice
Common types of telehealth malpractice include:
- Failure to examine adequately: The provider does not perform an adequate examination given the limitations of telehealth, leading to missed findings (e.g., a skin lesion that would be more clearly evaluated in person).
- Misdiagnosis: The provider makes an incorrect diagnosis based on the limited information available via telehealth, leading to delayed or incorrect treatment. [Link to: /misdiagnosis-lawyer]
- Failure to recognize emergencies: The provider fails to recognize that the patient symptoms require emergency care (e.g., chest pain, stroke symptoms, severe abdominal pain) and does not direct the patient to the emergency department.
- Medication errors: The provider prescribes the wrong medication, wrong dose, or a contraindicated medication, without adequate examination or monitoring. [Link to: /medication-error-lawyer]
- Failure to order tests: The provider fails to order necessary diagnostic tests (blood tests, imaging, cultures) that would have been ordered in an in-person visit.
- Failure to follow up: The provider does not arrange appropriate follow-up, particularly when the diagnosis is uncertain or the condition may worsen.
- Inappropriate use of telehealth: The provider uses telehealth for a condition that requires in-person examination (e.g., acute abdominal pain, suspected fracture, neurological deficit).
- Technology failures: Poor video or audio quality leads to missed findings or communication failures, and the provider does not address the limitations.
- Cross-state licensing violations: The provider is not licensed in New York but provides telehealth services to a New York patient.
- Failure to obtain informed consent: The provider does not explain the risks and limitations of telehealth before the visit.
- Privacy and security violations: The provider uses unsecured technology, compromising the patient privacy.
Failure to Examine: The Limits of Virtual Care
The most common type of telehealth malpractice is failure to examine adequately. While telehealth allows providers to see and speak with patients, it does not allow for hands-on physical examination. This limitation can lead to missed findings, particularly for:
- Skin lesions: A mole or skin lesion that appears benign on video may be malignant in person. Without the ability to palpate the lesion or use dermoscopy, the provider may miss a melanoma. - Abdominal pain: Without the ability to palpate the abdomen, the provider may miss signs of appendicitis, bowel obstruction, or other surgical emergencies. - Respiratory distress: While the provider can see the patient breathing, they cannot auscultate the lungs, which may lead to missed pneumonia, heart failure, or pulmonary embolism. - Neurological deficits: While the provider can assess some neurological function via video, subtle deficits (e.g., mild weakness, sensory loss, ataxia) may be missed without a hands-on examination. - Cardiac findings: Without the ability to auscultate the heart, the provider may miss murmurs, rubs, or gallops. - Musculoskeletal injuries: Without the ability to palpate, range, and stress joints, the provider may miss fractures, dislocations, or ligament injuries.
The standard of care requires the provider to recognize the limits of telehealth and direct the patient to in-person care when necessary. If the provider fails to do so and the patient suffers harm as a result, the failure may constitute negligence.
Technology Failures and Liability
Technology failures during telehealth visits can contribute to malpractice. Common technology issues include:
- Poor video quality: Blurry or pixelated video can prevent the provider from seeing important findings (e.g., a rash, a wound, jaundice). - Poor audio quality: Distorted or dropped audio can prevent the provider from hearing important symptoms (e.g., wheezing, slurred speech). - Connectivity issues: Dropped calls or frozen video can disrupt the visit and lead to missed information. - Inadequate equipment: If the patient or provider does not have adequate equipment (camera, microphone, lighting), the quality of the visit may be compromised.
The standard of care requires the provider to: - Address technology limitations: If the technology is not adequate, the provider should reschedule the visit as an in-person visit or direct the patient to in-person care. - Document technology issues: If technology issues affected the visit, the provider should document them and note how they affected the assessment. - Not rely on inadequate technology: If the technology prevents an adequate examination, the provider should not make clinical decisions based on inadequate information.
Failure to address technology limitations may constitute negligence if it leads to a missed diagnosis or incorrect treatment.
Licensing and Cross-State Issues
Telehealth raises unique licensing issues. In general, a healthcare provider must be licensed in the state where the patient is located at the time of the telehealth visit. If the provider is in New Jersey but the patient is in New York, the provider must be licensed in New York.
New York has specific requirements for telehealth providers:
- New York licensure: Providers who deliver telehealth services to patients located in New York must be licensed in New York. - Registration: Out-of-state providers may need to register with New York to provide telehealth services. - Institutional permits: Some providers may practice under institutional permits in certain settings. - Interstate Medical Licensure Compact: New York is not a member of the Interstate Medical Licensure Compact, which allows for expedited licensure in multiple states.
If a provider is not properly licensed in New York, they may be practicing without a license, which can give rise to professional discipline and malpractice liability.
[Link to: /medical-malpractice/what-is-medical-malpractice]
Informed Consent in Telehealth
Informed consent is particularly important in telehealth. The provider must explain:
- The nature of telehealth: What telehealth is and how it differs from in-person care. - The limitations of telehealth: The provider cannot physically examine the patient, and some findings may be missed. - The risks of telehealth: Including the risk of misdiagnosis, delayed diagnosis, and technology failures. - The alternatives to telehealth: Including in-person care, emergency care, or seeking care from another provider. - Privacy and security: How the patient information will be protected during the telehealth visit. - The patient right to refuse: The patient can decline telehealth and seek in-person care.
Failure to obtain informed consent for telehealth may constitute negligence or lack of informed consent (a separate cause of action under New York Public Health Law 2805-d).
When Telehealth Negligence Constitutes Malpractice
Telehealth negligence constitutes medical malpractice in New York when a healthcare provider deviated from the accepted standard of care during a telehealth visit and that deviation caused harm. Key considerations include:
- Was telehealth appropriate for the condition? If the condition required in-person examination and the provider used telehealth instead, it may constitute negligence. - Was the examination adequate? If the provider did not perform an adequate examination given the limitations of telehealth, it may constitute negligence. - Did the provider recognize the limits of telehealth? If the provider should have directed the patient to in-person care but did not, it may constitute negligence. - Was the diagnosis correct? If the provider made an incorrect diagnosis based on inadequate information, it may constitute negligence. - Was the medication appropriate? If the provider prescribed the wrong medication or dose without adequate examination, it may constitute negligence. - Did the provider arrange follow-up? If the diagnosis was uncertain or the condition could worsen, and the provider did not arrange follow-up, it may constitute negligence. - Did the deviation cause harm? The harm must be causally connected to the deviation.
Under New York law, expert testimony is required. A certificate of merit (CPLR 3012-a) must be filed with the lawsuit.
Proving Your Telehealth Malpractice Case
To prove a telehealth malpractice case, you need:
- Medical records: Including telehealth visit records, provider notes, and any follow-up records. - Technology records: Records of the telehealth platform used, video/audio quality, and any technology issues. - Prescription records: If medications were prescribed during the telehealth visit. - Follow-up records: Records of any in-person visits or emergency department visits that followed the telehealth visit. - Expert review: Independent review by board-certified specialists. - Standard of care evidence: Establishing what the standard of care requires in telehealth and how the provider deviated from it. - Causation evidence: Establishing that the deviation caused the harm. - Expert testimony: From qualified experts.
[Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
New York Statute of Limitations
Telehealth malpractice claims are subject to the 2.5-year statute of limitations for medical malpractice (CPLR 214-a), running from the date of the negligent act.
However, there are important exceptions:
- Continuous treatment doctrine: If the patient continued to receive treatment from the same provider for the same condition, the statute may be tolled. - Lavern's Law: For cancer misdiagnosis cases, the statute may be extended to 2.5 years from the date of discovery. [Link to: /misdiagnosis/laverns-law] - Wrongful death (EPTL 5-4.1): If the telehealth negligence caused death, the wrongful death claim must be filed within 2 years of the date of death. [Link to: /wrongful-death-lawyer]
Contact an attorney as early as possible to evaluate all applicable deadlines.
Common Defense Arguments and How We Counter Them
Defense: The patient chose telehealth and accepted its limitations.
Defense attorneys use several arguments in telehealth malpractice cases:
- Our Counter: While the patient may have chosen telehealth for convenience, the standard of care requires the provider to assess whether telehealth is appropriate for the condition, to maximize the virtual examination, and to direct the patient to in-person care when necessary. Informed consent to telehealth does not waive the provider duty to meet the standard of care.
Defense: The technology was adequate and the provider did their best.
Our Counter: If the technology was inadequate for a proper assessment, the provider should have recognized this and directed the patient to in-person care. Making clinical decisions based on inadequate information is a deviation from the standard of care.
Defense: The condition was difficult to diagnose even in person.
Our Counter: The question is not whether the condition was difficult to diagnose, but whether the provider met the standard of care. If the provider should have ordered tests, referred to a specialist, or directed the patient to in-person care, and failed to do so, the standard of care was breached. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]
Defense: The patient did not provide adequate information during the visit.
Our Counter: The standard of care requires the provider to take a thorough history, ask appropriate questions, and recognize when the information is insufficient. If the provider did not ask the right questions or did not recognize that more information was needed, the standard of care was breached.
Compensation Available
A successful telehealth malpractice claim in New York can provide compensation for:
- Medical expenses: Including past and future medical care, surgeries, rehabilitation, medications, and assistive devices
- Lost wages and loss of earning capacity
- Pain and suffering: NY has no cap on non-economic damages
- Permanent disability: For physical and cognitive impairments
- Loss of enjoyment of life
- Wrongful death damages: If the telehealth negligence caused death [Link to: /wrongful-death-lawyer]
What to Expect Working with MDLaw Firm
When you contact MDLaw Firm about a potential telehealth malpractice case:
- Free Consultation: We listen to your story and review the basic facts.
- Immediate Deadline Assessment: We evaluate the 2.5-year statute of limitations and all applicable exceptions.
- Record Retrieval: We obtain all medical records, including telehealth visit records, technology records, and follow-up records.
- Expert Review: We engage board-certified specialists to independently review the records.
- Standard of Care Analysis: We establish what the standard of care requires in telehealth and how the provider deviated from it.
- Litigation: We file within the statute of limitations and handle all aspects of discovery and trial.
- Resolution: We pursue maximum compensation through settlement or verdict.
Frequently Asked Questions
What is telehealth malpractice?
Telehealth malpractice is medical negligence that occurs during the delivery of healthcare services via telehealth -- including video visits, telephone consultations, and remote monitoring. The standard of care in telehealth is generally the same as in in-person care. Common types include failure to examine adequately, misdiagnosis, failure to recognize emergencies, medication errors, and failure to arrange follow-up.
Can I sue a doctor for telehealth malpractice?
Yes. If a healthcare provider deviated from the standard of care during a telehealth visit and that deviation caused you harm, you can sue for medical malpractice. The standard of care in telehealth requires the provider to assess whether telehealth is appropriate, maximize the virtual examination, recognize the limits of telehealth, and direct the patient to in-person care when necessary.
What are the most common types of telehealth malpractice?
Common types include failure to examine adequately (leading to missed findings), misdiagnosis (based on limited information), failure to recognize emergencies (e.g., chest pain, stroke symptoms), medication errors (prescribing without adequate examination), failure to order tests, failure to follow up, and inappropriate use of telehealth for conditions that require in-person examination.
Is the standard of care different for telehealth?
The standard of care in telehealth is generally the same as in in-person care -- the provider must exercise the same degree of skill, care, and diligence. However, telehealth has unique considerations, including appropriate patient selection, maximizing the virtual examination, recognizing the limits of telehealth, addressing technology limitations, obtaining informed consent, and arranging appropriate follow-up.
Can a provider prescribe medication via telehealth?
Yes, providers can prescribe medication via telehealth, but they must exercise the same caution as in person -- including checking for allergies, drug interactions, and appropriate dosing. Some medications (e.g., controlled substances) have additional requirements for telehealth prescribing. Failure to prescribe safely via telehealth may constitute negligence.
Does the provider need to be licensed in New York for telehealth?
Yes. Providers who deliver telehealth services to patients located in New York must be licensed in New York. If a provider is not properly licensed in New York, they may be practicing without a license, which can give rise to professional discipline and malpractice liability.
How long do I have to file a telehealth malpractice lawsuit in New York?
The statute of limitations for medical malpractice in New York is 2.5 years from the date of the negligent act (CPLR 214-a). The continuous treatment doctrine may extend this if you continued to receive treatment from the same provider. Lavern's Law may extend it for cancer misdiagnosis cases. If the negligence caused death, a wrongful death claim must be filed within 2 years. Contact an attorney as early as possible.
How do I get started?
Contact MDLaw Firm at 347-524-5777 for a free, confidential consultation. We will obtain your telehealth visit records and medical records, have them independently reviewed by qualified experts, and help you determine the best path forward.
How Much Is My Telehealth Malpractice in New York: Liability for Virtual Care Errors Case Worth?
The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.
Catastrophic Injury (Brain Damage, Cerebral Palsy, Quadriplegia)
$5,000,000 - $50,000,000+Key Factors
- Lifetime care needs (often $10M+)
- Loss of future earnings
- Pain and suffering
- Medical equipment and home modifications
- 24/7 nursing care
Examples
- Birth injury resulting in cerebral palsy
- Anesthesia hypoxic brain injury
- Surgical error causing paralysis
Wrongful Death
$1,000,000 - $15,000,000Key Factors
- Decedent's age and earning capacity
- Pecuniary loss to distributees (EPTL 5-4.1)
- Conscious pain and suffering before death
- Loss of parental guidance
- Medical and funeral expenses
Examples
- Failure to diagnose cancer leading to death
- Surgical error causing fatal hemorrhage
- Delayed sepsis treatment
Significant Permanent Injury
$500,000 - $5,000,000Key Factors
- Permanent partial disability
- Future medical expenses
- Lost wages and diminished earning capacity
- Pain and suffering
- Impact on quality of life
Examples
- Wrong-site surgery
- Nerve damage from surgical error
- Delayed stroke diagnosis causing permanent deficit
Serious but Non-Permanent Injury
$250,000 - $1,000,000Key Factors
- Temporary disability
- Medical expenses
- Lost wages during recovery
- Pain and suffering
- Emotional distress
Examples
- Surgical site infection
- Medication error requiring prolonged hospitalization
- Delayed fracture diagnosis
Factors That Affect Your Settlement
Severity of Injury
More severe and permanent injuries command higher settlements due to lifetime care costs.
Liability Strength
Clear negligence (e.g., retained surgical object) yields higher offers than contested liability.
Economic Damages
Medical bills, lost wages, and future care costs are quantifiable and form the settlement floor.
Non-Economic Damages
Pain and suffering, loss of enjoyment of life, and emotional distress vary by injury type.
NY Statutory Caps
New York has NO caps on medical malpractice damages, unlike many other states — allowing for full compensation.
Medical Indemnity Fund (MIF)
Birth-related neurological injuries may qualify for the NY MIF, providing lifetime medical coverage.
Comparative Negligence
If the plaintiff is partially at fault, the settlement is reduced by their percentage of fault (CPLR 1411).
Defendant Resources
Hospital systems and their insurers typically have higher policy limits than individual providers.
Frequently Asked Questions
What is the average medical malpractice settlement in New York?
The average medical malpractice settlement in New York varies widely by injury type, but typically ranges from $500,000 to $5,000,000 for significant injuries. Catastrophic injuries such as cerebral palsy or brain damage can exceed $10,000,000. New York has no caps on damages, so there is no artificial ceiling on compensation.
How long does a medical malpractice case take in New York?
Most medical malpractice cases in New York take 18-36 months from filing to resolution. Complex cases involving multiple defendants or novel legal issues can take 3-5 years. Cases that settle before trial typically resolve faster, while cases that go to verdict can take significantly longer.
What percentage do medical malpractice lawyers take in NY?
New York medical malpractice attorneys typically work on a contingency fee basis, meaning you pay nothing upfront. The standard fee is 30% of the recovery, though it may vary by case complexity and stage of resolution. The fee must be approved by the court.
Are medical malpractice settlements taxable in New York?
Compensation for physical injuries and medical expenses is generally not taxable under federal and New York tax law. However, portions allocated to lost wages or punitive damages may be taxable. Consult a tax professional for guidance on your specific settlement.
What if I was partially at fault for my injury?
New York follows comparative negligence (CPLR 1411), meaning your settlement is reduced by your percentage of fault. For example, if you are found 20% at fault and the total damages are $1,000,000, you would recover $800,000. You can recover compensation as long as you are not 100% at fault.
Get a Personalized Case Valuation
Every case is unique. Our attorneys can evaluate the specific facts of your situation and provide an estimated range of compensation. This consultation is free and confidential.
Local Coverage
MDLaw Firm handles medical malpractice cases across New York City and the broader metro area. Find borough-specific resources and deadlines:
Get the Help Your Family Deserves
If you or a loved one has been affected by telehealth malpractice in New York, contact MDLaw Firm at 347-524-5777 for a free consultation. We will have your telehealth records and medical records independently reviewed by qualified experts.
Looking for a local attorney? See our NYC Medical Malpractice Lawyer page for borough-specific representation.
This article is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome. No attorney-client relationship is created by reading this article or contacting MDLaw Firm.
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Key Facts
- Telehealth malpractice = negligence during virtual care causing harm
- Standard of care in telehealth = same as in-person care
- Common types: failure to examine, misdiagnosis, failure to recognize emergencies
- Providers must recognize limits of telehealth and direct to in-person care when needed
- Providers must be licensed in New York to treat NY patients via telehealth
- NY statute: 2.5 years for medical malpractice (CPLR 214-a)
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