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LEGAL CONSIDERATIONS IN THE AGE OF TELEMEDICINE

May 14, 2025

The Expansion of Telemedicine
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Telemedicine is the practice of offering clinical health services via computers, tablets, or smartphones.¹ It has transformed the way patients and providers connect, allowing them to communicate without the need for in-person office visits.² Although telemedicine existed in the United States prior to March 2020, it was not until the COVID-19 pandemic that its adoption surged. Faced with lockdowns and the need to maintain access to care, the healthcare system turned to telemedicine almost overnight, fast-tracking a transition that would otherwise have taken years.Before the pandemic, telemedicine was limited to licensed providers and patients with existing relationships and restricted to specific locations such as designated rural areas or certain medical facilities. Physicians were required to conduct visits from their place of practice, only video technology was permitted, services were reimbursed at lower rates than in-person care, and Medicare coinsurance and deductibles still applied.³

With the passage of the CARES Act, many of these regulations were lifted. Any type of clinician could bill for Medicare services, preexisting patient-provider relationships were no longer necessary, and telemedicine could originate from any location—including providers’ homes—and even cross state lines. Both video and audio-only visits became acceptable, with platforms like FaceTime, Skype, and Zoom approved for use. Providers were also allowed to waive cost-sharing and reimbursement rates were the same as those for in-person visits.⁴

Unsurprisingly, telemedicine use soared. Between 2019 to 2021, telemedicine among physicians increased from 15.4% to 86.5%.5 In 2021 alone, nearly half of all California adults (49%) reported using telemedicine within the past year.6 Although the immediate need brought on by the pandemic has since passed, telemedicine left its mark and has now become a deeply integrated part of modern healthcare delivery.
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Benefits of Telemedicine
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Telemedicine offers a variety of benefits for both patients and healthcare providers. Two of its most notable advantages are comfort and convenience. Patients can attend appointments from the comfort of their homes and at times that suit their schedules. This eliminates the need to take time off work, get ready, and commute to a clinic or hospital. As a result, patients can access care more frequently and address health concerns in a timely manner. This convenience is especially valuable for individuals managing chronic conditions or seeking mental health services, where ongoing monitoring and regular appointments are essential.⁷

For minor but still important concerns, patients can simply send messages to their providers. In many cases, providers respond within 48 hours, often including educational materials and specific recommendations. Without the comfort of telemedicine, many patients may avoid addressing minor concerns altogether due to the inconvenience of in-person visits. Additionally, telemedicine enables patients to request lab work virtually at timely intervals and allows providers to quickly decipher and explain the results, also virtually, improving both communication and quality of care.From a financial perspective, telemedicine reduces costs for patients as well. Many virtual visits do not require copays and patients can save on transportation, parking, and lost income from taking time off work.

Healthcare providers also benefit significantly from telemedicine. Telemedicine can reduce the stress and burnout associated with overcrowded waiting rooms and back-to-back in-person appointments. Telemedicine often allows providers to dedicate up to 30 minutes or more per appointment, allowing for more thorough discussions than are typically not possible in shorter in-person visits. Additionally, it breaks down geographical barriers, giving broader access to specialists and improving patient satisfaction. Moreover, virtual appointments tend to have fewer no-shows, contributing to more predictable schedules and improved efficiency for providers.

Just like patients, providers can also conduct virtual visits from the comfort of their own homes and may even choose to dedicate specific days of the week exclusively to telehealth appointments, allowing for a more flexible work schedule and improved work-life balance.
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Disadvantages of Telemedicine

As with any development, telemedicine also has its drawbacks. One of the most significant concerns is the lack of a physical examination. Without the ability to physically assess patients, providers may miss crucial signs and symptoms, increasing the risk of misdiagnosis and potentially leading to inaccurate treatment plans. Prescribing medications and refills without an in-person examination can also raise concerns about safety, especially in complex or evolving cases.

Additionally, the quality of care may be compromised by the inherently impersonal nature of virtual visits. Establishing rapport and trust can be more challenging through a screen, which may lead to a weakened patient-provider relationship over time.

Telemedicine can also limit the thoroughness of care. Unlike in-person visits where intake forms, vital signs, weight, and medical history updates are collected at the onset of each visit, virtual visits lack this comprehensive data. There is typically no nurse check-in and unless the patients share information themselves, providers may remain unaware of important changes such as new allergies, medications, or recent symptoms. The absence of this information can further complicate diagnoses and treatment in a virtual setting.

Telemedicine raises legitimate concerns about patient privacy as well, particularly due to the potential for data breaches and unauthorized access to sensitive health information through the devices, apps, or networks used for virtual care. These risks can be heightened if patients or providers are using personal devices and internet connections lacking proper security measures.

Legal Implications of Telemedicine

The standard of care for healthcare providers remains the same, whether treatment is provided in-person or via telemedicine.8 However, the absence of a physical examination creates significant challenges in maintaining that standard. Because the patient cannot be evaluated in-person, a provider may miss important clinical signs or symptoms that a patient may not report but that are crucial to the diagnosis. This can increase the risk of misdiagnosis or delayed diagnosis, which may lead to negligence claims. Additionally, if a provider fails to recommend an in-person visit when one is warranted, they can be held liable for violating the standard of care.

Telemedicine relies heavily on self-reporting by the patient and if the patient omits symptoms or does not recognize their importance, the provider may be misled. If the provider fails to ask theright questions to reveal these symptoms and makes an incorrect diagnosis, they may be found in breach of their duty to provide adequate care.

Telemedicine also creates complexities regarding licensing. Providers must ensure they have the proper licenses to treat patients in different states. If a provider consults with a patient who is located out of state, they must ensure they are licensed to practice in that jurisdiction. Practicing without an appropriate license can result in severe penalties and even legal action.

It is crucial for providers to ensure that patients fully understand the limitations of telemedicine. Patients should be advised that treatment and care is being provided without a physical examination, which carries risks. If providers fail to inform patients of these risks, they may face legal challenges regarding informed consent. Providers should clearly explain both the benefits and risks of telemedicine, particularly for complicated health concerns. They should obtain written informed consent from patients before proceeding with any virtual care, including via video, phone, or messaging.

In terms of data security, providers must employ cybersecurity measures to protect patient information. As telemedicine relies on many digital platforms, there is an inherent risk of data breaches or unauthorized access to sensitive health information. Providers must ensure they use secure, encrypted programs that comply with HIPAA standards to avoid privacy violations and protect patient confidentiality.

To mitigate legal risks and avoid liability, providers should recommend in-person visits when the patient’s condition is complex or when symptoms cannot be fully evaluated through telemedicine. This ensures that patients receive the most appropriate treatment, and that the provider maintains the standard of care. It is also crucial that providers use platforms for telemedicine that adhere to privacy regulations to protect against security breaches. By exercising caution, obtaining informed consent, and recommending in-office visits when necessary, providers can reduce the potential for legal issues and increase their patients’ quality of care.
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If you would like more information about the legal considerations of telemedicine, please contact attorney Paul Cardinale with the Medical Defense Law Group at paul.cardinale@med-defenselaw.com or 916-244-9110.

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¹ Why Use Telehealth?, HEALTH RESOURCES & SERVICES ADMINISTRATION (February 29, 2024).
² Id.
³ Julia Shaver, The State of Telehealth Before and After the COVID-19 Pandemic, NATIONAL LIBRARY OF MEDICINE (April 25, 2022).
⁴ CARES Act: AMA COVID-19 Pandemic Telehealth Fact Sheet, THE AMERICAN MEDICAL ASSOCIATION (April 27, 2020).
⁵ Myrick KL, Mahar M, DeFrances CJ. Telemedicine Use Among Physicians by Physician Specialty: United States, 2021. NCHS Data Brief, no 493. Hyattsville, MD: National Center for Health Statistics. 2024.
⁶ Lacey Hartman, Telehealth Use and Experiences Among California Adults, CALIFORNIA HEALTH CARE FOUNDATION ISSUE BRIEF (September 2023).
⁷ Ezeamii VC, Okobi OE, Wambai-Sani H, Perera GS, Zaynieva S, Okonkwo CC, Ohaiba MM, William-Enemali PC, Obodo OR, Obiefuna NG, Revolutionizing Healthcare: How Telemedicine Is Improving Patient Outcomes and Expanding Access to Care, NATIONAL LIBRARY OF MEDICINE (July 5, 2024). MD: National Center for Health Statistics. 2024.
⁸ Practicing Medicine Through Telehealth Technology, MEDICAL BOARD OF CALIFORNIA.