Telemedicine Malpractice: Emerging Issues in California
Telemedicine has transformed healthcare in California, offering patients faster access to doctors, specialists, and mental health providers without leaving their homes.
While this innovation has dramatically expanded care access, it has also created a complex web of new legal challenges, especially when mistakes occur.
Increasingly, California courts are being asked to decide whether traditional medical malpractice standards fully apply in a virtual setting, and how to address emerging issues unique to remote care.
This article explores the landscape of telemedicine malpractice through the lens of established Medical Malpractice & Professional Negligence in California, highlighting how foundational laws like the Medical Injury Compensation Reform Act (MICRA), established negligence definitions, and existing case categories (birth injuries, surgical errors, misdiagnosis, etc.) intersect with emerging telehealth claims.
What Is Telemedicine Malpractice in California?
Telemedicine malpractice occurs when a doctor or healthcare provider delivers substandard care through remote technology such as live video visits, asynchronous phone consultations, or AI-driven diagnostic platforms, leading directly to patient harm.
The fundamental legal principle remains the same as in traditional malpractice: the provider is liable if they breach the standard of care, and that breach causes injury.
Common issues arising specifically in the telehealth context include:
- Misdiagnosis or delayed diagnosis due to the inherent limitations of a remote physical exam, where providers cannot use touch, smell, or a comprehensive in-person assessment.
- Medication errors stemming from a lack of thorough in-person review of a patient’s medical history, current medications, or lifestyle factors.
- Failure to monitor chronic conditions properly when relying solely on patient self-reporting or limited remote vital signs over video.
- Privacy breaches involving sensitive health information stored, transmitted, or discussed across multiple digital platforms.
- Technological failure that interrupts care, such as a video feed cutting out during a critical consultation, leading to a breakdown in communication or an incomplete assessment.
Because California law already provides official guidance on negligence via the Medical Board’s Medical Malpractice Reporting FAQ, the standard of care remains the benchmark: a provider may be liable if their actions (or inactions) fall below what another reasonably prudent provider in the same specialty would have done, even if the visit occurred online.
The standard itself may be affected by the circumstances - a provider may be expected to refer the patient for an in-person visit if a virtual consultation is insufficient, but the underlying duty of care is not diminished by the technology.
MICRA and Damage Caps in California Medical Malpractice Cases
One of the most important factors shaping the financial and strategic dynamics of telemedicine malpractice litigation is the Medical Injury Compensation Reform Act of 1975 (MICRA).
This landmark legislation was enacted to stabilize the healthcare industry by placing strict limits on non-economic damages, compensation for pain, suffering, loss of consortium, and emotional distress in malpractice lawsuits.
Prior to 2023, the cap on non-economic damages was rigidly set at $250,000, regardless of the severity of the injury.
Recognizing the need for reform, California updated MICRA through Assembly Bill 35 (AB 35), significantly increasing the non-economic damage caps under the Fairness for Injured Patients Act (FIPA).
The Current MICRA Caps (Post-2023 AB 35/FIPA):
- For Injury Cases: The cap initially rose to $350,000 and is set to increase annually by $40,000 for the next decade, eventually reaching $750,000.
- For Wrongful Death Cases: The cap initially rose to $500,000 and is set to increase annually by $50,000 for the next decade, eventually reaching $1 million.
Crucially, these new caps apply equally to all types of medical negligence.
This means that a victim of telemedicine malpractice faces the exact same compensation restrictions for non-economic damages as a patient harmed by negligence in a traditional, in-person setting.
While the caps are higher, the law still limits recoveries compared to other types of personal injury claims in California and other states, making the calculation of economic damages (past and future medical bills, lost wages, and loss of earning capacity) paramount in telemedicine malpractice claims.
Emerging Malpractice Categories in the Virtual Setting
The adoption of telemedicine has intersected with nearly every traditional category of medical malpractice, creating novel scenarios for liability.
Birth Injury Lawsuits in California and Telemedicine Risks
Expectant mothers increasingly utilize telemedicine for routine prenatal care, monitoring, and educational consultations. However, a missed complication during a remote appointment can have devastating, life-altering consequences for both the mother and the infant.
For instance, a provider who fails to recommend an urgent in-person check-up for symptoms indicative of preeclampsia, placenta previa, or gestational diabetes, conditions that require physical examination and lab work, could be found negligent.
If this delay results in fetal distress, hypoxic-ischemic encephalopathy (HIE), or other preventable birth injuries, it could form the basis of a significant Birth Injury Lawsuit in California.
The critical question courts must answer is whether the virtual platform allowed the provider to meet the standard of care required to protect the vulnerable patient.
Surgical Errors: Patient Rights in California Telehealth Referrals
While surgeries themselves remain in-person events, the pre-operative assessments and the bulk of post-operative follow-up consultations often take place through telehealth. Liability can arise in several distinct ways:
- Faulty Pre-Op Planning: If a surgeon misinterprets diagnostic imaging (such as X-rays, MRIs, or CT scans) reviewed over a low-resolution video connection, or fails to properly communicate necessary information to the surgical team based on a virtual history, it could contribute to an error during the operation.
- Improper Post-Op Monitoring: If a patient develops an infection at the surgical site or shows signs of a complication (like deep vein thrombosis, or DVT), and the remote provider fails to adequately assess the gravity of the situation via video, leading to a delayed intervention.
In these instances, patients may explore claims similar to established Surgical Errors: Patient Rights in California cases, arguing the virtual nature of the care directly impaired the proper management of the surgical journey.
Misdiagnosis and Delayed Diagnosis Claims in California Telemedicine
One of the most frequent and fastest-growing categories of telemedicine malpractice is Misdiagnosis and Delayed Diagnosis Claims in California.
The ability to conduct a thorough physical exam is the core challenge. A doctor who overlooks a suspicious mole during a low-resolution video exam, fails to properly assess cardiac symptoms via self-reported information, or delays ordering critical in-person tests (like a mammogram, biopsy, or EKG) may be found negligent.
The legal standard is whether another competent physician, utilizing the same telehealth technology, would have acted differently or more often, whether the prudent physician would have immediately recognized the limitations of the technology and ordered an in-person follow-up.
Medication and Pharmacy Error Lawsuits in California Telehealth Prescribing
Telehealth platforms have streamlined the process of electronic prescribing. However, this convenience introduces new risks.
When a provider issues the wrong dosage, prescribes a medication to an inappropriate patient (e.g., prescribing a controlled substance without adequate screening), or fails to catch a dangerous drug-drug interaction without the benefit of a detailed, in-person medication reconciliation, these mistakes fall squarely under Medication and Pharmacy Error Lawsuits in California.
The reliance on electronic patient records means that any failure to adequately review that history before hitting the ‘send’ button on a prescription can constitute a breach of duty.
Nursing Home Abuse and Neglect in California: Remote Oversight Gaps
Many California nursing homes and long-term care facilities have incorporated telemedicine to increase the efficiency of physician or specialist check-ins.
While this can be beneficial, if staff members rely on video checkups as a substitute for necessary in-person bedside care, it can lead to severe neglect. F
or example, a doctor relying on a nurse’s subjective video assessment of a patient’s pressure sore, instead of conducting a physical evaluation, might miss a rapidly escalating infection.
Families considering Nursing Home Abuse and Neglect in California claims are increasingly pointing to the improper use or outright overuse of telemedicine as direct evidence of a facility’s or provider’s failure to meet basic standards of care.
Dental Malpractice Claims in California and Teledentistry
Even dentistry has significantly adopted digital tools, with teledentistry consultations rising dramatically. While a cleaning or filling requires an in-person visit, preliminary screenings, orthodontics check-ins, and emergency triage are often done remotely.
Overlooking a subtle sign of an abscess, periodontal disease, or oral cancer during a video consult, or failing to properly triage an urgent dental injury, could lead to serious injury or tooth loss.
These cases fit within Dental Malpractice Claims in California, where the same negligence standards apply: did the teledentist fail to provide the care and attention expected of a reasonably prudent dental professional?
Psychiatric Malpractice and Mental Health Provider Liability in Teletherapy
Teletherapy (virtual mental health treatment) has become the new default for millions of Californians. While effective for many, errors in diagnosing or treating severe mental illness online can have extreme consequences.
A failure to properly assess the risk of self-harm, a lapse in judgment regarding the need for medication stabilization, or a failure to identify suicidal ideation during a video session are all serious errors.
These actions can lead to Psychiatric Malpractice and Mental Health Provider Liability claims. Courts are now examining whether a virtual mental health provider owes the same duty of care as an in-person psychiatrist, and early rulings strongly suggest that the duty of care is identical, regardless of the medium.
The virtual setting may even impose a higher burden on the provider to use enhanced communication techniques to assess non-verbal cues.
The Future of Telemedicine Malpractice in California
California’s courts and legislature are only beginning to address the complex and rapidly evolving questions raised by telemedicine malpractice. The legal landscape is expected to see significant shifts as digital health becomes more integrated into daily practice.
Key Jurisdictional and Liability Issues to Watch:
- AI Diagnostic Tools and Provider Liability: The increasing use of Artificial Intelligence (AI) to assist in reading medical images, analyzing patient data, and suggesting diagnoses presents a massive liability challenge. If an AI tool suggests an incorrect diagnosis, who is legally responsible? Is it the physician who relied on the tool, the developer who programmed the algorithm, or the healthcare system that implemented the technology? Courts will need to develop new standards for the "prudent" use of AI in medical practice.
- Expanded Cross-Border Liability: Telehealth often makes geography irrelevant. When a California patient sees an out-of-state provider via video—a provider who may not be licensed in California or fully understand California’s standard of care—it creates complex jurisdictional issues. California courts will have to determine whether they can assert jurisdiction over providers whose only connection to the state is a single video consultation.
- The Role of Technology Failure: When a malpractice claim is tied to a poor internet connection, a software glitch, or a malfunctioning camera, liability may shift from the provider’s clinical judgment to the technology platform itself, introducing complex product liability and system failure claims alongside traditional medical negligence.
- Adaptation of MICRA Reforms: As digital care becomes standard, pressure may grow to adapt MICRA further to address the high costs associated with complex, technologically mediated litigation, particularly around the valuation of non-economic damages in unique injury scenarios.
As telehealth evolves from a temporary solution into a permanent, core component of the healthcare system, malpractice law will inevitably continue to evolve alongside it.
For now, patients and providers alike must operate under the clear understanding that the fundamental standard of care applies whether the medical service is delivered in an exam room or over a secure video connection.
The technology may change, but the physician’s duty to their patient does not.
People Also Ask (FAQs)
Can I sue a doctor for telemedicine malpractice in California?
Yes. If a telemedicine provider’s actions fall below the accepted standard of care and cause harm, you may bring a malpractice claim under California law. The same negligence rules that apply to in-person doctors also apply to virtual care.
Does MICRA apply to telemedicine malpractice claims?
Yes. Telemedicine cases are still considered medical malpractice, meaning the MICRA and Damage Caps in California Medical Malpractice Cases apply. Non-economic damages are capped, although recent reforms have raised the limits.
What are common examples of telemedicine malpractice?
The most common issues include misdiagnosis, delayed diagnosis, incorrect prescriptions, lack of proper follow-up, and failure to recommend in-person evaluation when necessary.
How does telemedicine affect misdiagnosis and delayed diagnosis claims in California?
Because doctors have limited physical examination tools during video visits, the risk of missing symptoms increases. Courts are seeing a rise in Misdiagnosis and Delayed Diagnosis Claims in California connected to telehealth.
Are psychiatric malpractice cases possible in teletherapy?
Yes. Mental health providers offering teletherapy can be held liable for negligence just like in-person providers. Psychiatric Malpractice and Mental Health Provider Liability cases often involve failure to recognize warning signs of self-harm or providing inadequate treatment remotely.
