When a Video Visit Leads to a Missed or Delayed Diagnosis
This guide is written for patients and families who believe they were harmed by negligent care during a telemedicine or telehealth appointment, including cases where a provider failed to refer a patient to the emergency room. If you are a healthcare provider seeking compliance guidance, this article is not intended for that purpose.
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Article written by Brendan Lupetin, Esq. Brendan is a managing partner in the law firm of Lupetin & Unatin, a medical malpractice law firm located in Pittsburgh and serving Western Pennsylvania.
Our practice is limited to high-value catastrophic cases because that is where we can do the most for our clients and for patient safety.
If you or a loved one received care through a video call, urgent care app, or telehealth platform and later discovered a serious condition that should have been caught sooner, or were not directed to emergency care when you should have been, this article is for you.
At Lupetin & Unatin, we are actively litigating telemedicine malpractice claims, including a wrongful death case in which a patient with textbook signs of a life-threatening pulmonary embolism was not directed to go to the emergency department. That false sense of security cost him his life. We know this area of law firsthand, and we are prepared to pursue it on your behalf.
KEY QUESTION
Can I sue a doctor for a missed or delayed diagnosis that happened during a telemedicine appointment?
KEY ANSWER
Yes. Pennsylvania law, now backed by Act 42 of 2024 (the TeleMed Act), holds telemedicine providers to the exact same standard of care as in-person physicians. The virtual nature of an appointment is not a legal defense to negligence. If a telehealth provider failed to diagnose a serious condition, or failed to send you to the emergency room when your symptoms demanded it, and you were harmed as a result, you may have a medical malpractice claim.
The Scale of the Problem: Telemedicine Malpractice by the Numbers
Telemedicine has exploded in use, and so has telemedicine-related harm.
Key Statistics:
- Telehealth utilization increased by approximately 7,000% nationally from 2019 to 2020.
- 66% of telemedicine malpractice claims between 2014 and 2018 involved misdiagnosis, compared to 47% for in-person care. (Professional liability data)
- More recent studies place diagnostic errors in up to 70% of all telehealth malpractice claims.
- 25% of telehealth malpractice claims involve missed cancer; 20% missed stroke; 20% missed infection. (Insurance claims data)
- 74% of U.S. physicians now use or offer telehealth. (American Medical Association)
- As of 2023, the average U.S. malpractice settlement exceeded $420,000. Catastrophic cases routinely result in seven-figure verdicts and settlements.
The convenience of telemedicine has not been matched by universal clinical competence in the virtual setting. Patients are paying the price.
Part 1: The Legal Framework — What Pennsylvania Law Requires of Telehealth Providers
Medical malpractice occurs when a healthcare provider fails to meet the accepted standard of care, causing serious injury or death. Telemedicine malpractice is that same tort, arising in a virtual or remote care encounter: a live video visit, telephone consultation, asynchronous “store-and-forward” message, or remote patient monitoring session.
In Pennsylvania, these encounters occur across a wide range of platforms, from national third-party services to the proprietary telehealth programs operated by the Commonwealth’s own major health systems: UPMC AnywhereCare, AHN Virtual Care (Allegheny Health Network), Penn Medicine OnDemand, JeffConnect (Jefferson Health), St. Luke’s Virtual Care, and LVHN Telehealth (Lehigh Valley Health Network). These are not independent apps operating at arm’s length from clinical care. They are the digital front doors of established Pennsylvania hospital systems, delivering care under those systems’ names, using their physicians, and subject to the same legal and professional standards as any service those institutions provide in person.
The Same Standard of Care, Now Codified in Statute
Defense attorneys in telehealth cases routinely argue that because a virtual provider could not perform a physical examination, they should not be held to the same standard as an in-person physician. Pennsylvania law does not accept this argument, and since July 2024, Pennsylvania statute makes that rejection explicit.
Act 42 of 2024, known as the TeleMed Act, was signed by Governor Shapiro on July 3, 2024, and is codified in Title 40, Chapter 48 of the Pennsylvania Consolidated Statutes. Its central mandate: a provider who delivers health care services through telemedicine “shall be subject to the same standard of care that applies to health care services in an in-person setting.” This is not a guideline or a court interpretation. It is Pennsylvania law.
Before Act 42, defense counsel could argue that the standard of care for telemedicine was unsettled, that virtual medicine was too new and too variable to hold providers to an objective benchmark. Act 42 forecloses that argument entirely. The Pennsylvania General Assembly has spoken: if a telehealth provider fails a patient, they are accountable under the same legal standard as any other physician. Act 42 also provides the Commonwealth’s first comprehensive statutory definition of telemedicine, covering synchronous video, asynchronous store-and-forward, and remote patient monitoring.
The principle that flows directly from Act 42 is this: the technology must be sufficient for the condition being evaluated, not the other way around. If a condition requires physical examination to diagnose safely and a physician chose to treat it via video instead, that choice may itself be the breach of the standard of care. Failing to send a patient to the emergency room when their symptoms demand it is one of the most serious forms of telehealth negligence we see.
ACT 42 KEY TAKEAWAY: Pennsylvania’s TeleMed Act (Act 42 of 2024) codifies the same standard of care for telemedicine as for in-person medicine into statute. A telehealth company or physician cannot argue in court that the virtual nature of care reduced their obligations to you.
The MCARE Act: Pennsylvania’s Governing Malpractice Statute
Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act governs all medical malpractice litigation in the Commonwealth and applies to telemedicine cases without modification or reduction. Four provisions are especially relevant to virtual care claims.
First, the standard of care is defined as what a “reasonably prudent provider” in the same specialty would do, not what is possible given the technology available. Second, there is no cap on economic or non-economic compensatory damages in Pennsylvania; a jury can award the full value of your harm. Third, punitive damages are available when a provider’s conduct is willful, wanton, or recklessly indifferent to patient safety. Fourth, a Certificate of Merit from a qualified medical expert must be filed before a malpractice lawsuit can proceed, certifying that the provider’s conduct deviated from the standard of care.
In a telemedicine case, the expert must practice in the same or a closely related specialty as the defendant and must be conversant with the standard of care applicable to virtual visits in that field, including when the limitations of telehealth require referral to in-person or emergency care. At Lupetin & Unatin, we have cultivated relationships with nationally recognized experts in telemedicine and patient safety who can provide authoritative opinions in these cases.
No Telemedicine Immunity in Pennsylvania
Some states enacted broad immunity laws for telehealth providers during and after COVID-19, effectively shielding them from malpractice claims even when they caused serious harm. Pennsylvania enacted no such immunity. Pennsylvania’s Act 42 of 2024 moves in precisely the opposite direction, strengthening patient rights by codifying accountability into statute. If you received negligent care from a telehealth provider, your legal rights remain fully intact.
Informed Consent and the Duty to Disclose Telehealth’s Limitations
A telehealth provider has a duty to inform you that a virtual visit carries inherent clinical limitations. At minimum, a provider should communicate that the examination is remote and certain physical findings cannot be assessed via video; that the diagnosis is based on available information which may be incomplete; and that certain symptoms, such as chest pain, shortness of breath, stroke symptoms, or high fever with stiff neck, should prompt an immediate emergency room visit regardless of the telehealth assessment.
If a provider fails to communicate these limitations and you reasonably rely on their virtual assessment to your detriment, choosing not to go to the ER because the telehealth physician said you do not need emergency care, the provider may face both a negligence claim and a separate informed consent claim.
Interstate Complexity: When the Doctor Is in a Different State
Many direct-to-consumer telehealth encounters involve a physician licensed in a different state than the patient. Pennsylvania courts generally apply the law of the state where the patient was harmed, because that is where the treatment relationship was formed and where the injury occurred. Pennsylvania’s Department of State has confirmed that out-of-state practitioners who wish to treat Pennsylvania patients must be licensed in Pennsylvania, whether the interaction is in-person or via telehealth, and Act 42 reinforces this framework.
Interstate cases raise procedural complexities involving questions of jurisdiction, applicable certificate of merit requirements, and expert qualifications that require experienced legal counsel to navigate. At Lupetin & Unatin, we pursue these cases regardless of where the treating provider is physically located.
Part 2: How Virtual Care Creates Diagnostic Danger — Conditions Most Frequently Harmed
The physical examination is the foundation of clinical medicine. Physicians use touch, sound, sight, and smell to detect what patients themselves cannot describe. Telemedicine removes most of these diagnostic tools. Each section below pairs a lost clinical capability with the conditions its absence most commonly harms.
A. Pulmonary Embolism and Cardiovascular Emergencies
Pulmonary embolism is a blood clot in the lungs. It is a medical emergency. A patient with a large PE may appear conversational and coherent on a video call while their oxygen levels are dangerously low, their heart rate is elevated to 110 or above, and a clot is progressively obstructing their pulmonary circulation. None of those findings are visible on a screen.
The Wells Criteria for PE, a validated clinical scoring tool that any emergency or general medicine provider should know, requires assessing heart rate greater than 100, clinical signs of deep vein thrombosis (leg tenderness, swelling, palpable cord), and whether an alternative diagnosis is less likely than PE. A telehealth provider who cannot measure a heart rate, take an oxygen saturation, auscultate for crackles in the lungs, or palpate the legs for DVT cannot properly apply the Wells Criteria. In that situation, the standard of care is to direct the patient to the emergency department, not to reassure them and send them home.
Related cardiovascular emergencies that are frequently mishandled in telehealth settings include heart attack, unstable angina, aortic dissection, and hypertensive crisis. A patient complaining of heartburn, indigestion, or chest tightness during a video call may be having a myocardial infarction. Without an EKG, pulse oximetry, blood pressure measurement, or cardiac enzyme labs (troponins), a telehealth provider cannot rule it out. They must act accordingly.
In our experience litigating these cases, the failure point is almost never that the provider didn’t know the Wells Criteria or the HEART score. It is that the encounter moved too quickly, with too many patients in queue, to apply them carefully. The audit logs we subpoena in these cases often tell that story plainly.
THE VITAL SIGNS PROBLEM: Vital signs (heart rate, blood pressure, respiratory rate, oxygen saturation, temperature) are the most important data points in any acute clinical evaluation. A telehealth physician who cannot obtain them and nonetheless rules out a life-threatening emergency is making a clinically and legally untenable decision. A patient with HR 112, SpO2 88%, and RR 24 appears on video as a person who can hold a conversation. That is not a clinical assessment. It is a conversation.
B. Missed or Delayed Cancer Diagnosis
Cancer is the most statistically common category of telehealth malpractice, accounting for 25% of telehealth malpractice claims nationally. The physical examination gap is central to why.
Palpation, the physician’s ability to feel the body, is the frontline tool for detecting breast masses, fixed lymph nodes, abdominal masses, and testicular abnormalities. A hard, fixed lymph node in the neck or armpit may be an early sign of lymphoma or metastatic cancer. A palpable breast mass reported by the patient as hard and like a marble cannot be assessed, characterized, or properly triaged by a physician watching through a screen. The telehealth provider who advises monitoring without palpating such a mass may be denying the patient a timely referral that could have detected a Stage I cancer before it progressed to Stage III.
For store-and-forward skin evaluations, the problem is equally serious. If a patient’s photo of a lesion is poorly lit, incorrectly angled, or low-resolution, the physician is making a diagnosis on fundamentally incomplete data. Under Pennsylvania law, a physician has a duty to reject inadequate data rather than render a diagnosis from it. A physician who characterizes a melanoma as benign based on a blurry cell phone photo may face significant malpractice exposure.
We have reviewed store-and-forward encounters in which the physician’s entire documented rationale for a benign characterization was a single sentence. No description of image quality, no inquiry about lesion change over time, no recommendation to return for in-person evaluation. That documentation tells us a great deal about what the standard of care required and what the provider chose to do instead.
The most commonly missed cancers in telehealth settings include breast cancer, lymphoma, skin cancer and melanoma, colorectal cancer (persistent abdominal symptoms dismissed without physical exam), testicular cancer, and oral cancer.
NOTE: Pennsylvania’s “Loss of Chance” doctrine applies directly to delayed cancer diagnosis cases. If a telehealth provider’s failure to refer you for an in-person examination caused your cancer to progress from a treatable to a more advanced stage, the provider may be liable for the harm caused by that lost window of opportunity, even if the cancer itself was not caused by the negligence.
C. Delayed Stroke Diagnosis
Time is brain. Every minute a stroke goes untreated, approximately 1.9 million neurons die. A telehealth provider who dismisses stroke symptoms such as sudden facial drooping, arm weakness, slurred speech, or sudden severe headache as migraine, anxiety, or dehydration, without being able to perform a neurological examination, assess eye movement, or check blood pressure, may be liable for every minute of delayed treatment that follows.
Stroke is one of the most commonly misdiagnosed conditions in telemedicine, particularly in younger patients assumed to be low-risk. A physician seeing a 35-year-old on video with sudden severe headache and neck stiffness must maintain the same clinical suspicion they would apply in an examination room. The inability to perform a fundoscopic exam, assess for papilledema, or conduct a formal NIHSS stroke scale assessment is not a defense; it is a reason to send the patient to the emergency department immediately.
D. Sepsis
Sepsis kills approximately 270,000 Americans each year. Many patients developing sepsis appear conversational and coherent on a video call while their vital signs tell a very different story. A telehealth provider cannot take a temperature, measure a blood pressure, assess respiratory rate, or feel skin that is mottled, cold, or clammy, all findings central to early sepsis recognition. A patient discharged from a telemedicine encounter with a developing infection who returns to the ER in septic shock two days later may have a compelling malpractice case if the telehealth visit contained red flags that were not adequately addressed.
E. Pediatric Emergencies
Children present particular challenges in the telehealth setting. They are often unable to articulate symptoms accurately, and the physical signs physicians rely on to assess severity in children (skin color and turgor, fontanelle tension in infants, work of breathing, capillary refill time, muscle tone) are largely invisible through a screen. Pediatric conditions most frequently mishandled in telemedicine include severe dehydration, respiratory distress, meningitis, appendicitis, and intussusception. If a telehealth provider sends a seriously ill child home without referring the family to an emergency department, the consequences can be catastrophic.
F. Mental Health Telehealth Errors
The explosion of mental health telehealth since 2020 has created a distinct area of malpractice liability. Mental health telehealth errors include failure to diagnose bipolar disorder followed by antidepressant prescribing that triggers a manic episode; inadequate medication management due to superficial assessments; failure to hospitalize a patient who cannot be adequately assessed via video for true lethality of suicidal ideation; and missing organic causes of psychiatric symptoms such as brain tumors, thyroid disease, or neurological conditions that would be flagged in a physical examination.
G. Prescription and Medication Errors
Telemedicine creates a uniquely dangerous environment for medication errors. A physician prescribing without a physical examination may prescribe antibiotics for a presumed simple infection while missing signs of a surgical emergency (appendicitis, abscess, bowel perforation); prescribe anti-anxiety medication to a patient with cardiac arrhythmia whose palpitations are misattributed to anxiety; miss contraindications apparent only in person such as pregnancy or hepatic disease; or prescribe controlled substances without the assessment required to manage them safely.
H. AI-Assisted Diagnosis Errors
Many telehealth platforms now embed AI-powered diagnostic tools (symptom checkers, triage algorithms, clinical decision support software) that interact with patients before or during a virtual visit. This creates an evolving category of malpractice risk. A physician who accepts an AI tool’s suggested diagnosis without independent clinical evaluation may be engaging in a checklist-style approach that falls below the standard of care. Documentation showing the AI suggested “migraine” and the physician clicked “confirm” without apparent independent analysis is powerful evidence of a superficial encounter. At Lupetin & Unatin, we have seen encounter records in which the physician’s entire documented assessment is a single word or phrase that mirrors the platform’s algorithmic output, with no recorded history, no differential, and no explanation of why other diagnoses were excluded. That pattern is not medicine. It is data entry. Platforms whose algorithms systematically underweight the significance of certain symptoms may also face corporate liability for algorithmic negligence. We have written extensively on AI malpractice on our site. Telehealth is where that emerging area of law and traditional malpractice doctrine most directly converge.
Part 3: Who Can Be Held Liable
Unlike a traditional malpractice case against a single physician, telehealth cases frequently involve multiple defendants across multiple jurisdictions. Identifying every accountable party is one of the most important things an experienced telemedicine malpractice attorney does.
The Treating Physician, NP, or PA
The primary defendant is almost always the licensed healthcare provider who conducted the virtual visit, evaluated against the same standard as any other physician in their specialty. Our firm and our medical experts assess whether the provider asked the right compensatory questions to account for the absence of a physical examination; correctly identified red flag symptoms requiring emergency referral; documented the limitations of the virtual exam; obtained adequate informed consent regarding telehealth’s limitations; and correctly applied validated clinical decision tools such as the Wells Criteria for PE, the HEART score for chest pain, or the ABCD2 score for stroke risk, given the information available.
The Telehealth Platform or Corporation — Suing UPMC, AHN, Penn Medicine, and Others
Pennsylvania law creates a powerful second track of liability: the corporation itself. Under the Thompson v. Nason Hospital corporate negligence doctrine, healthcare corporations owe an independent duty of care to patients. This doctrine applies directly to telehealth companies, and it applies with particular force to the proprietary telehealth platforms operated by Pennsylvania’s major health systems.
UPMC AnywhereCare, AHN Virtual Care, Penn Medicine OnDemand, JeffConnect (Jefferson Health), St. Luke’s Virtual Care, and LVHN Telehealth are not neutral technology intermediaries. They are clinical services operated under the brand, infrastructure, and physician networks of established Pennsylvania hospital systems. When a patient uses one of these platforms, they are receiving care from that institution, and that institution bears full corporate accountability for the quality of that care. National third-party platforms such as Teladoc and MDLive are subject to the same doctrine. Under Thompson v. Nason, a telehealth corporation’s independent duty of care to patients includes:
- Credentialing and privileging physicians appropriately before allowing them to treat patients on the platform
- Establishing and enforcing clinical protocols that mandate emergency referral when symptoms cannot be safely evaluated virtually
- Providing physicians with adequate time to conduct thorough visits, rather than incentivizing rapid patient turnover through per-visit payment structures or maximum visit-time mandates
- Designing platform software that surfaces a patient’s complete medical history and prior visit records during an encounter
- Ensuring that AI diagnostic tools embedded in the platform are properly validated and not substituted for independent physician judgment
This corporate liability theory is particularly powerful because it reaches both the provider and the systemic failures behind them. Platform audit logs, which we routinely subpoena in discovery, can reveal how many patients the physician was managing simultaneously, how long they spent on your case, and whether documentation was generated post-visit from templates rather than real-time clinical notes. What we have found in these records is often more damaging than what the medical chart itself shows: encounter times of four to six minutes for patients presenting with chest symptoms, copy-pasted assessments across dozens of visits in a single shift, and clinical protocol checklists marked complete with no corresponding documentation of what was actually assessed. Evidence that a platform knowingly incentivized rushed, inadequate evaluations may also support a claim for punitive damages.
Patients across Pennsylvania should understand that the nonprofit or academic status of these health systems is not a shield against accountability. UPMC, Allegheny Health Network, Penn Medicine, Jefferson Health, St. Luke’s, and Lehigh Valley Health Network all carry the same institutional liability for their telehealth programs as for any other clinical service they deliver. If you were harmed using UPMC AnywhereCare, AHN Virtual Care, Penn Medicine OnDemand, JeffConnect, St. Luke’s Virtual Care, or LVHN Telehealth, your legal rights are identical to those of any other medical malpractice victim. The platform does not change the standard. The institution does not escape responsibility.
Part 4: What You Can Recover — Damages in Pennsylvania
Pennsylvania is one of the most favorable states for medical malpractice plaintiffs. There are no caps on compensatory damages. A jury can award a full and fair amount to compensate you and your family.
Economic Damages
Economic damages cover all financial losses caused by the negligent telehealth care: past and future medical expenses including surgery, hospitalization, chemotherapy, rehabilitation, and home care; lost wages during treatment and recovery; loss of future earning capacity for permanent impairment; and lifetime care costs for catastrophic injuries.
Non-Economic Damages
Pennsylvania imposes no cap on non-economic damages. These include pain and suffering (physical and emotional); loss of enjoyment of life; loss of consortium for your spouse or domestic partner; and permanent disfigurement or physical impairment.
The Increased Risk of Harm Standard
In Pennsylvania, a delayed diagnosis does not have to be the sole cause of a poor outcome for a case to be viable. Under the Increased Risk of Harm standard, we hold telehealth providers accountable when their negligence took a precarious medical situation and made it significantly worse. If a remote provider failed to recognize symptoms or delayed a critical referral, and that lapse caused a cancer to advance a stage or a cardiac event to progress, the provider has legally increased the patient’s risk of harm. At Lupetin & Unatin, we focus on proving that even if a full cure was not a statistical certainty, the provider’s failure robbed the patient of a measurable chance at a better recovery. That is a distinct, compensable harm under Pennsylvania law, and it ensures that patients are not penalized simply because their underlying condition was serious.
Wrongful Death and Survival Damages
When a telemedicine error results in death, the surviving family may pursue wrongful death damages (funeral expenses, the financial support the decedent would have provided, and the loss of companionship) as well as survival action damages covering the physical and emotional suffering the decedent experienced between the negligent act and their death, including any period of awareness of their impending condition.
Punitive Damages
Punitive damages are available when a defendant’s conduct demonstrates willful, wanton, or recklessly indifferent disregard for patient safety. Pennsylvania caps punitive damages at twice the compensatory award. Evidence that a telehealth platform knowingly structured its business model to incentivize rushed, inadequate evaluations while aware of resulting patient harm may support a punitive damages claim.
IMPORTANT: Lupetin & Unatin has secured verdicts and settlements exceeding $10 million in catastrophic malpractice cases, including a $10.83 million brain injury verdict and a record-setting $7.25 million Erie County verdict. We prepare every case as if it will be tried, because that preparation is what produces full and fair results.
Part 5: The Statute of Limitations
Pennsylvania law imposes strict time limits on medical malpractice cases, and telemedicine malpractice cases are no exception. The general rule is two years from the date you knew or reasonably should have known about the injury and its connection to medical negligence.
The Discovery Rule
If a missed diagnosis was revealed only months later when you finally saw a specialist in person, the two-year clock may not start until the date you discovered, or reasonably should have discovered, the connection between the telehealth encounter and your harm.
Minors
If the injured party is a child under 18, the statute of limitations generally does not begin to run until their 18th birthday. However, parents’ claims for expenses incurred during the child’s minority are subject to a strict two-year deadline from the date of injury.
Wrongful Death
If a telemedicine error resulted in death, surviving family members generally have two years from the date of death to bring a wrongful death and survival action.
Part 6: Evidence, Investigation, and How We Build Your Case
One of the distinctive advantages of telemedicine malpractice cases is the electronic evidence trail that does not exist in traditional cases.
The Evidence That Exists
Platform Audit Logs
Most telehealth platforms maintain detailed logs of every action taken during an encounter, revealing how long the physician spent reviewing your chart before the call, how many other patients they managed simultaneously, whether they viewed your photos or attached records, and whether their documentation was generated after the visit using copy-paste templates. We routinely subpoena these logs. They are often devastating to defendants.
Video Recordings
Some platforms record telehealth encounters. If the visit was recorded, this is powerful evidence of what the physician saw, said, and failed to ask. We investigate recording policies in every case.
Clinical Protocols
Professional telehealth companies maintain written clinical protocols governing when physicians must refer patients to in-person or emergency care. If those protocols were ignored, or if no adequate protocols existed, this is evidence of corporate negligence. We subpoena these documents in discovery.
Physician Encounter Volume
If a telehealth physician was managing an excessive number of simultaneous encounters, a practice sometimes called patient churning that is incentivized by per-visit payment models, this supports both individual and corporate negligence claims. We request encounter volume data for the date in question. In our experience, the numbers in these records frequently surprise even seasoned defense counsel: physicians managing eight, ten, or twelve simultaneous patient queues during a single shift, with average encounter times that make any meaningful clinical assessment physically impossible.
Your Own Electronic Evidence
Preserve everything now: screenshot your conversation history, visit summary, prescriptions, and any photos you submitted. Note the exact platform, date, time, and provider name or ID. Do not delete the app or cancel your account until you have spoken with an attorney.
How We Build Your Case
- Free case evaluation: We review your account of the telehealth encounter, identify the potential claim, and assess its viability honestly.
- Medical records acquisition: Immediate written requests to the platform and all treating providers for every relevant record, including visit notes, platform records, subsequent records, and autopsy reports if applicable.
- Platform subpoena: Litigation hold notice and subpoena seeking audit logs, encounter records, physician credentialing files, clinical protocols, and AI algorithm documentation.
- Independent expert review: A board-certified physician in the relevant specialty reviews the records and renders opinions on the standard of care, the deviation, and causation.
- Certificate of Merit: Upon receiving a supporting expert opinion, we file the Certificate of Merit required by Pennsylvania law and proceed.
- Corporate liability investigation: We investigate the telehealth corporation’s business model, physician incentive structures, training requirements, and protocol compliance history in parallel.
- Demand and litigation: We present a demand package to the defendant’s insurer and, if a fair settlement is not reached, we take the case to trial.
A Representative Case: How a Telemedicine Malpractice Claim Is Built
A 52-year-old woman from Allegheny County contacts her employer-sponsored telehealth app at 9 p.m. after noticing a firm lump in her breast. The physician she reaches, working across multiple simultaneous calls, asks her to press on the area and describe what she feels. She says it feels hard, like a marble. The physician reviews her chart, notes that she had a clean mammogram fourteen months earlier, and tells her there is no cause for immediate concern. He does not refer her for an in-person breast examination. He does not order a diagnostic mammogram or ultrasound. Instead, he tells her to follow standard protocol: get her next routine mammogram when it is due, which her insurance schedule places approximately ten months away. The visit concludes in under eight minutes.
She follows the physician’s advice. She is not alarmed. A doctor reviewed her case and found nothing urgent. She waits.
Ten months later, at her scheduled annual mammogram, imaging reveals a suspicious mass. A biopsy confirms invasive ductal carcinoma. By the time of diagnosis, the cancer has spread to two axillary lymph nodes. What was almost certainly a Stage I tumor at the time of the telehealth visit is now Stage III. Her treatment plan, which would have been a lumpectomy and radiation, now requires a mastectomy, chemotherapy, and radiation. Her five-year survival odds have dropped significantly.
WHAT WE INVESTIGATE: Was the physician’s decision to defer to the next routine mammogram a violation of the standard of care for a patient presenting with a self-reported palpable breast mass? Should the complete absence of a physical examination have mandated an immediate referral for diagnostic imaging or in-person surgical evaluation, regardless of the recent screening mammogram? Did the platform’s multi-call model and sub-ten-minute encounter structure contribute to a superficial assessment? Was she informed that virtual care cannot substitute for palpation of a breast mass and that her symptom, independent of her mammogram history, warranted prompt in-person evaluation?
WHAT WE DO: We subpoena the platform’s audit logs to determine how long the physician spent on her chart before and during the call, how many other patients he was managing simultaneously, and whether the documentation reflects any genuine clinical reasoning or was generated from a post-visit template. We engage a breast surgical oncology expert to opine on the standard of care for a new palpable-mass complaint in a 52-year-old patient presenting via telehealth, and on whether a fourteen-month-old screening mammogram provides any clinical basis for deferring diagnostic workup of a newly reported mass. We assess the corporation’s clinical protocols to determine whether they required the physician to refer patients with new palpable masses for in-person evaluation, and whether those protocols were followed or ignored. We retain an oncology staging expert to quantify the harm caused by the ten-month delay: the difference in stage, the change in treatment, and the reduction in survival probability that resulted from a diagnosis that could and should have been made sooner. If a fair settlement is not reached, we present the full picture to a jury.
Part 7: If You Were Harmed — What to Do Now
CRITICAL: Pennsylvania’s two-year statute of limitations runs from when you knew or should have known about your injury. Telehealth platform records and audit logs are purged on routine retention schedules. Every day that passes narrows your evidentiary window. If you believe a telehealth visit caused serious harm, act immediately.
- Seek immediate in-person medical care. Your health comes first. If you are still experiencing symptoms, go to an emergency room today.
- Preserve all electronic evidence. Screenshot your conversation history, visit summary, prescriptions, and any photos you submitted. Note the exact platform, date, time, and provider name or ID.
- Do not delete the app or cancel your account. Telehealth platforms store visit histories and logs on their servers. Canceling an account may cause that data to be purged.
- Request all medical records in writing. You are entitled by law to your complete telehealth visit notes and all subsequent treating records. Send written requests to the platform and every provider who treated you afterward.
- Write down everything you remember. Include exactly what you told the provider, what they said, what they diagnosed, what they recommended, and specifically whether they told you that you did not need emergency care.
- Contact an experienced Pennsylvania medical malpractice attorney. Telemedicine malpractice is a specialized area requiring deep medical knowledge, expert networks, and experience litigating against well-resourced telehealth platforms. Not all personal injury lawyers handle these cases.
Frequently Asked Questions
This is a common scenario in direct-to-consumer telehealth. Pennsylvania courts generally apply Pennsylvania law because that is where you, the patient, were located when the care was delivered and where the injury occurred. Pennsylvania’s Department of State requires that out-of-state providers treating Pennsylvania patients be licensed here, whether in person or via telehealth. The interstate nature of the encounter creates procedural complexities involving questions of jurisdiction, expert qualifications, and certificate of merit requirements that require experienced legal counsel to navigate. We handle multi-state telehealth cases.
Signing a pre-visit consent form is an acknowledgment of the inherent limitations and risks of virtual care. It is not a permission slip for negligence. In Pennsylvania, you cannot contractually waive your right to competent medical care. If the provider’s conduct deviated from the standard of care and that deviation caused your injury, a pre-visit consent form does not prevent you from pursuing a malpractice claim. What those consent forms do authorize, covering data privacy risks, technological failures, and connection issues, is legally distinct from a provider’s professional duty to deliver competent care.
Yes. NPs and PAs who provide telehealth care are held to the standard of care applicable to their profession. If an NP or PA conducted a virtual visit and failed to diagnose a serious condition or failed to refer to emergency care when required, both they and their supervising physician may face liability. The scope-of-practice limitations of NPs and PAs, including their obligation to consult supervising physicians in complex or high-risk situations, are themselves part of the standard of care we evaluate.
Mental health telehealth providers are subject to the same standard of care as any licensed mental health professional. If a remote psychiatrist or therapist misdiagnosed your condition, prescribed the wrong medication, failed to recognize that you or your family member needed hospitalization, or missed an organic cause of psychiatric symptoms that would have been apparent in a physical examination, this may constitute malpractice. These cases are evaluated on their specific clinical and factual circumstances.
The legal line between a bad medical outcome and malpractice is the standard of care. A bad outcome is not automatically malpractice. But if a reasonably competent telehealth physician, exercising appropriate clinical judgment with the information available, would have diagnosed your condition, ordered further testing, or directed you to the emergency room, and your provider failed to do any of those things, that failure may be malpractice. In our experience, the cases that ultimately result in the strongest claims are often the ones that don’t look like malpractice at first glance. A patient told they have anxiety whose symptoms were actually a pulmonary embolism. A woman reassured that her palpable mass can wait for her next mammogram. The negligence is embedded in what didn’t happen: the question not asked, the referral not made, the red flag not recognized. The only way to know for certain is a case evaluation by an attorney with experience in both medicine and the law. Ours are always free, always honest, and always supported by independent medical expert review.
At Lupetin & Unatin, we handle all medical malpractice cases, including telemedicine cases, on a contingent fee basis. You pay nothing unless we recover money for you. No upfront fees, no hourly charges, no costs billed to you if we do not win. The contingent fee model ensures that every Pennsylvania patient has access to the same caliber of legal representation as the telehealth companies and insurers they are up against.
Your Right to Competent Care Does Not End at the Screen
Pennsylvania law is unambiguous, and since July 2024 it is statutory: the standard of care does not diminish because an appointment is virtual. The screen is not a liability shield. The inability to take vital signs is not a defense; it is a reason to send the patient somewhere the vital signs can be taken.
At Lupetin & Unatin, we are not writing about telemedicine malpractice from a distance. We are litigating it right now.
Free Consultation — No Fee Unless We Win
If a telehealth visit led to a missed or delayed diagnosis, a negligent failure to refer to emergency care, or the loss of a family member, we want to hear from you. Our case evaluations are always free. If we take your case, it is on contingency; you pay us nothing unless we win.