Telemedicine liability
The question of who answers for harm arising from a remote medical act: each professional for their own act, the technology operator for its failure, with territorial scope issues when patient and physician sit in different countries.
Telemedicine liability describes how the burden of harm from a remotely delivered medical act is shared out. In France, the HPST law of July 21, 2009, defined telemedicine, and a decree of October 19, 2010, set out its acts: teleconsultation, tele-expertise, remote monitoring, remote assistance and emergency call regulation. Amendment 6 to the national physicians' agreement brought teleconsultation into standard reimbursement in September 2018, and the 2020 pandemic sent volumes soaring. The law created no specific regime. Each professional answers for their own act under ordinary fault rules, and must meet the insurance obligation of Article L. 1142-2 of the Public Health Code. In tele-expertise, the requesting physician who seeks the opinion and the consulted specialist who gives it each answer for their share. The specialist answers for the interpretation, the requester for the quality of the data sent and for the final decision. A breakdown, lag or image compression falls on the technology operator or software vendor, by contract or under product liability, and data must sit with a host certified for health data (HDS). For the underwriter, two points matter. Territorial scope first: a patient treated from abroad, or a physician based outside France, can fall outside a policy drafted for in-person practice. Then the boundary with cyber, when the incident is a data leak or a platform outage. Not to be confused with liability for connected health devices, which falls first on the manufacturer.
Textbook case: a general practitioner sends a photo of a skin lesion through a tele-expertise platform; the image compression, undocumented by the vendor, erases its irregular edges. The consulted dermatologist concludes the lesion is benign. The melanoma is diagnosed fourteen months later, and the loss is valued at 400,000 euros. The expert splits fault: the specialist did not request a better image, the requester did not see the patient again. Both liability insurers pay, then seek recovery from the vendor.
telehealth liability, teleconsultation liability, telemedicine malpractice, remote care liability
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