Duty of Care and Medical Negligence in Telemedicine

by Kristin Charisse C. Siao and Maria Patricia P. Cruz

Telemedicine Defined
In its Statement on the Ethics of Telemedicine, the World Medical Association defined telemedicine as “the practice of medicine over a distance, in which interventions, diagnoses, therapeutic decisions, and subsequent treatment recommendations are based on patient data, documents and other information transmitted through telecommunication systems.” Simply, telemedicine is the use of telecommunications technology to remotely provide health or medical care. Medical advice through telemedicine may be between physician and patient, or between 2 or more physicians or healthcare professionals.
Telemedicine in the Philippines
The practice of telemedicine involving the sharing of medical knowledge between 2 or more physicians has been established as early as 2004 by the National Telehealth Center of the University of the Philippines under the National Telehealth Service Program. To date, however, there is no Philippine law directly governing telemedicine. As such, Philippine telemedicine is rife with unresolved issues pertaining to the duty and standard of care required of physicians and the determination of liability in cases of medical negligence. Under the present circumstances brought about by the COVID-19 pandemic, these issues are placed at the forefront.
Telemedicine as Practice of Medicine
The practice of medicine in the Philippines is governed by Republic Act No. 2382, otherwise known as the Medical Act of 1959, as amended. Under Section 10 of this law, a person is considered as engaged in the practice of medicine if he or she “shall, for compensation, fee, salary or reward in any form, paid to him directly or through another, or even without the same, physically examine any person, and diagnose, treat, operate or prescribe any remedy for human disease, injury, deformity, physical, mental, psychical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended…” [Emphasis supplied].
The above definition of the practice of medicine requires the physical examination of a patient by the physician – an element which is absent in telemedicine. Instead, the telemedicine physician, or one who provides medical advice using telecommunications technology, usually relies only on data, documents, images (including photos and videos), and other information transmitted through telecommunication systems.
While the practice of telemedicine does not appear to fall under the statutory definition of the practice of medicine, physicians who provide medical advice through telemedicine are clearly bound by the existing legal framework governing the practice of medicine.
However, considering that (a) the definition of the practice of medicine presupposes that a physical examination is conducted, and (b) there is absence of a regulatory framework specific to telemedicine, a significant issue that arises is whether a person possessing relevant knowledge, but who is not a licensed physician (such as a student taking up medicine, or a nurse or other healthcare professional), may dispense medical or health-related advice through telemedicine.
Duty and Standard of Care
Taking the foregoing into considering, the next issue that must be addressed is whether the duty and standard of care required of medical practitioners should also be applied to practitioners of telemedicine.
Under Philippine law and jurisprudence, duty of care exists when a person attempts to render medical assistance to another person. In Lucas vs. Tuaño, G.R. No. 178763 (21 April 2009), the Supreme Court of the Philippines explained that “in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases…” Moreover, the standard level of care required for a particular case is a matter “best addressed by expert medical testimony” and “peculiarly within the knowledge of experts in the field.”
Under ordinary circumstances, a doctor who renders medical advice to a client has a clear duty of care to the patient. The existence of the same duty of care by a telemedicine physician is not as well-defined, given the lack of a face-to-face interaction between the telemedicine doctor and the patient, as well as the absence of the opportunity for the telemedicine doctor to conduct a physical examination of the patient.
Nevertheless, by dealing with a patient directly through telephone or online interaction, a telemedicine practitioner also owes a duty of care to the patient that must meet the standard of diligence ordinarily expected from practitioners specializing in the same field who provide medical advice through telemedicine.
Recently, the Department of Health established telemedicine hotlines and some local governments and medical groups began providing free online consultations for persons in need of medical advice, both on COVID-19 and non-corona virus related matters. With the rapid increase in telemedicine platforms, without a clear definition of the standard of care required in telemedicine, there is a real risk that a number of these telemedicine providers could be providing below-par medical services, and could be exposed to potential malpractice claims in case of injury to the patient.
Medical Negligence
A physician’s breach of the duty of care may give rise to administrative, civil, and/or criminal liability. Such breach constitutes medical malpractice or negligence. In Borromeo vs. Family Care Hospital, Inc., G.R. No. 191018 (25 January 2016), the Supreme Court held that “[a] breach of the accepted standard of care constitutes negligence or malpractice and renders the defendant liable for the resulting injury to his patient.” In medical malpractice cases, the following elements must be established by expert testimony: “(1) the standard of care that the defendant was bound to observe under the circumstances; (2) that the defendant’s conduct fell below the acceptable standard; and (3) that the defendant’s failure to observe the industry standard caused injury to his patient.”
Thus, for purposes of establishing negligence in telemedicine, the plaintiff must present the testimony of an expert witness whose training and experience approximate the defendant’s. Proof of breach alone is not sufficient to establish negligence. It must also be proven, likewise through expert testimony, that there is a causal connection between the breach and the resulting injury sustained by the patient, or that the negligence must be the proximate cause of the injury.
Consequently, if a telemedicine physician’s breach of duty or standard of care is the proximate cause of a patient’s injury, the telemedicine physician may be held liable for said injury. However, the imposition of any penalty should be tempered, taking into consideration the limitations of technology and the possibility that the information provided by the patient to the telemedicine physician, which the latter used to render medical care or advice, may not be as accurate or complete.
From the above discussion, it is evident that there is an urgent need to put in place a regulatory framework for telemedicine in order to protect not only the patient and the physician, but also platform owners/administrators and other healthcare providers involved in telemedicine.
This article is intended for informational purposes only and should not be construed as legal advice. 
Published in Lexology at: https://www.lexology.com/library/detail.aspx?g=76a47571-18d1-4b9a-8cf1-1bcd4d9ad55f