Distance care services have so far enjoyed an excellent claims history. There have been remarkably few reported cases, and even fewer true professional or product liability claims. The majority have either been claims against Internet pharmacies for injudicious dispensing of a controlled substance, or 42 U.S.C. § 1983 claims arising in correctional facilities and alleging “deliberate indifference to a serious medical need.” There have been a good many privacy claims, however, and they provide useful guidance to providers and others in the identification and management of risk.
The explosion of the utilization of distance care technologies triggered by the pandemic may well change this picture. The sheer volume of cases handled via telehealth technology has reached unprecedented levels. Probability alone suggests that claims will increase. That’s all the more true as providers push the envelope, addressing an increasingly broad array of clinical problems in this manner. Another contributor to a likely increase in claims activity is that, among the many providers serving patients in this way, the percentage of inexperienced and untrained or modestly trained professionals is also increasing. The evidence so far is that telehealth has become far more popular among both patients and professionals than was ever the case pre-pandemic, suggesting that historically high levels of utilization will probably continue. These trends suggest that exploring this topic is particularly timely and useful.
The webinar by Joseph P. (Joe) McMenamin, MD, JD, will consider both professional and product liability theories that can be, and likely will be, asserted against providers, manufacturers, and distributors. Joe will examine how these theories can be adapted to services never dreamed of when these causes of action originally arose, what proof sources are likely to be relied upon, and what defenses are apt to be most often invoked. From those considerations, Joe will explore possible avenues to risk reduction.
In the U.S., tort litigation is of course an enormous problem for healthcare institutions and professionals, as it is for Pharma, MedTech, Biotech, and the providers of the platforms used in distance care. As suggested above, there is reason to anticipate that telemedicine’s nearly spotless record to date may change in the not-too-distant future. The problems we will consider include the legal theories that may be asserted against defendants, the likelihood of their success, the ways by which prospective defendants can identify and manage their risks, and how they might reasonably transfer risk. During the webinar Joe, will also consider defenses that might arise in such litigation and their potential to prevent adverse findings.
Joseph P. (“Joe”) McMenamin, MD, JD is a physician-attorney and the principal at McMenamin Law Offices, PLLC, a healthcare boutique concentrating on the law of digital health. Joe advises institutional and professional telehealth service providers, academic medical centers, remote monitoring services, trade associations, telehealth platform companies, private equity firms, and telecoms on a broad array of medico-legal questions arising from distance care and, more recently, from the application of augmented intelligence to health care in general and to telemedicine in particular. He writes and lectures extensively on these and related topics. He also serves as general counsel to the Virginia Telehealth Network, and as a member of the Legal Resource Team of CTeL, the Center for Telemedicine and eHealth Law. Joe graduated summa cum laude from Washington and Lee in 1974. After earning his MD at the University of Pennsylvania in 1978, he served a residency in internal medicine at Emory University and Grady Memorial Hospitals in Atlanta. He returned to Penn for Law School, finishing in 1985. During residency and law school, Joe practiced emergency medicine at community hospitals in Georgia and Pennsylvania, but since being admitted to the Bar in 1985 he has confined his activities to medico-legal consulting and to the private practice of law. For twenty years, Joe was a partner at McGuireWoods LLP, until in 2013 he founded his own law firm. He served for many years on the Boards of the Richmond Ambulance Authority and the Medical Society of Virginia Insurance Agency. He is board-certified in Legal Medicine, an Associate Professor of Legal Medicine at Virginia Commonwealth University, and a Fellow of the College of Legal Medicine.