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Medical teleconsultations challenges

The Supreme Court defines a medical malpractice suit as an action available to victims to redress a wrong committed by medical professionals who caused bodily harm to, or the death of, a patient

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Covid-19 has forced several professions to innovate their practice. Case in point, those in the healthcare industry have resorted to teleconsulting to ensure that government policies on social-distancing and reduction of non-essential travels are followed while providing accessible healthcare services to the public and keeping their source of livelihood viable.

In a 21 April 2020 Guide, the Medical Informatics Unit of the UP College of Medicine stated that medical teleconsultations are those which are performed through telecommunications or through the use of information and communication technologies (ICT), with the purpose of diagnosis or treatment of a patient with the sites being remote from patient or physician.

While the benefits of teleconsultations are undoubted, the same might pose legal risks for healthcare professionals who might find themselves facing medical malpractice lawsuits.

The Supreme Court (SC) defines a medical malpractice suit as an action available to victims to redress a wrong committed by medical professionals who caused bodily harm to, or the death of, a patient.

The suit is brought whenever a medical practitioner or health care provider fails to meet the standards demanded by his profession, or deviates from this standard and causes injury to a patient.

The SC held that the elements of medical negligence or malpractice are: 1) there must be a duty owed to a patient; 2) there must be a breach of such duty; 3) there must be injury on the part of the patient; and 4) there must be proximate causation between the breach of duty and injury suffered.

While medicine is not an exact science, and medical practitioners are not expected to be infallible, they must, at all times, act in accordance with acceptable medical practice standards.

To elaborate, there is a duty owed to a patient whenever a patient engages the services of a physician, provided there is consent from both parties.

Once a physician-patient relationship is established, the legal duty of care follows and a medical practitioner then becomes duty-bound to use at least the same standard of care that a reasonably competent medical practitioner would use to treat a medical condition in similar circumstances. If a breach in such duty causes injury to, or death of, a patient under the care of such physician, the latter can be held liable for medical malpractice.

Thus, a medical practitioner who exhibits negligent conduct such as neglect of medical history, failure to order appropriate tests, and failure to recognize symptoms, which leads to patient injury or death is liable for malpractice.

While medicine is not an exact science, and medical practitioners are not expected to be infallible, they must, at all times, act in accordance with acceptable medical practice standards. Adherence or failure to adhere to such standards is the common issue in medical malpractice suits.

Hence, the need for expert witnesses to testify and inform the courts on what those standards are.

However, adherence to acceptable medical practice standards may prove to be more difficult in teleconsulting where medical practitioners do not actually see their patients which, undoubtedly, is less desirable compared to actual physical check-ups.

Coupled with the fact that the Philippines has one of the worst internet services in the world, it would be harder for medical practitioners to properly diagnose patients since symptoms may not be as apparent when medical consultations are performed remotely.

Besides, the prevailing medically accepted standards of care are more often premised on an actual physical examination of a patient and not when performed through remote communications.

Thus, in the absence of any special law defining the scope and limitations of teleconsulting insofar as medical malpractice suits are concerned, medical practitioners still owe to their patients the same duty of care in teleconsulting as much as in traditional medical examinations, except that they should be more diligent in doing so given the inherent limitations in teleconsulting such as poor internet connection, the need for competent ICT equipment and knowledge in operating the same, and lack of opportunity to personally verify patient statements.

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