Navigating Liability in Virtual Care: Risk Management Strategies for Physicians in a Rapidly Evolving Landscape

The Transformation of Virtual Care

The COVID-19 pandemic catalyzed a seismic shift in the delivery of healthcare across the United States (US), propelling telehealth and virtual care from niche offerings into mainstream, essential services.^10–12 Practically overnight, physicians and healthcare organizations were required to adapt to new modalities of patient interaction—leveraging video visits, secure messaging, and remote monitoring to maintain continuity of care while minimizing infection risk.^13,14 What began as an emergency response has since evolved into a lasting component of the healthcare landscape, supported by rapid advancements in digital health technologies, clearer regulatory frameworks, and expanded coverage from both public and private insurers—even as certain Medicare telehealth flexibilities enacted during the COVID-19 pandemic expired on October 1, 2025.^{15–17, 66}

Today, virtual care is not only here to stay but is also expanding in scope and sophistication. Physicians are using advanced digital tools, FDA-approved remote monitoring devices, and integrated telehealth platforms to deliver care beyond the traditional clinic walls.^18,19 At the same time, federal and state regulators have worked to clarify licensure requirements, reimbursement policies, and privacy protections—creating new opportunities as well as new responsibilities for clinicians.^{15–17, 24, 67}

However, this transformation has also introduced a host of novel liability risks. Physicians must now navigate the unique challenges of remote diagnosis, documentation, and patient engagement, all while ensuring compliance with evolving legal and regulatory standards. Understanding these risks—and adopting effective risk mitigation strategies—has become imperative not only for protecting patients but also for safeguarding physicians’ own professional and legal interests. This article will explore the current landscape of virtual care, highlight key liability exposures, and provide actionable risk management strategies to help physicians thrive in this rapidly evolving environment.

The Virtual Care Landscape: Modalities and Regulatory Developments

The landscape of virtual care has rapidly expanded, offering a diverse array of technologies and interaction models that enable clinicians to deliver care remotely. For physicians, a clear understanding of these modalities—as well as the shifting regulatory environment that governs them—is essential to providing safe, effective, and compliant virtual care.

Virtual care can be broadly categorized into three principal modalities.^20,21 First, synchronous care involves real-time interactions between patient and provider, most commonly through video or telephone visits. These encounters closely resemble traditional office visits, allowing for immediate communication and clinical decision-making. Synchronous telehealth has become a cornerstone of remote care delivery since the onset of the COVID-19 pandemic, supported by expanded reimbursement and increasing patient acceptance.^{6,15,16,17,22,23,24}

Second, asynchronous care encompasses methods such as e-consults, secure messaging, and store-and-forward technology, which allow providers to review patient information and respond at a later time. Asynchronous modalities are often tied to an EHR through patient portals and are valuable for follow-up and the exchange of images or data that do not require live interaction.

Third, remote patient monitoring (RPM) leverages FDA-cleared devices to collect and transmit patient health data—such as vital signs, glucose levels, or cardiac rhythms—from the home to the clinical team.^6,22–25 RPM technologies support proactive management of chronic conditions and facilitate early identification of complications. The Office of Inspector General from the US Department of Health and Human Services (HHS OIG) reported that 94% of Medicare enrollees who used RPM in 2022 did so for chronic condition management.⁶⁷ The expansion of RPM has been driven by both the availability of FDA-cleared RPM tools and also new reimbursement pathways. However, there are important questions about device reliability, data management, and clinical oversight that must be considered.^{15, 16} Additionally, the HHS OIG has identified risks of fraud associated with RPM.⁶⁷

Alongside these evolving care modalities, the regulatory landscape governing virtual care has undergone significant transformation. After the success of expanded access during the pandemic, many private insurers broadened coverage for telehealth and RPM services, with many of these expansions now permanent or extended, although certain Medicare telehealth flexibilities have expired recently.^{6,15,16,66,68}

State Licensure

Physicians must also be mindful of state licensure requirements, which generally mandate that a provider be licensed in the state where the patient is located at the time of the virtual encounter. The Interstate Medical Licensure Compact (IMLC) has helped streamline the process for obtaining multiple state licenses, facilitating cross-state practice for eligible physicians, though participation and requirements can vary by state.^6,8,27,28

The US Food and Drug Administration (FDA) plays a central role in regulating digital health technologies, particularly those medical devices used in RPM.^31–36 The FDA provides guidance on device approval, post-market surveillance, and software as a medical device (SaMD), ensuring that tools used in virtual care meet rigorous safety and efficacy standards.^37–41 Physicians should confirm that any RPM devices they utilize are FDA-cleared or approved and should remain aware of their responsibilities regarding device-related adverse events.

Data privacy and security are foundational obligations in virtual care, governed by HIPAA and FTC requirements.^1,34,43,44 Physicians must ensure that their technology partners comply with these regulations.^42,43,45 (See Data Privacy and Security section for a detailed discussion of privacy and security risks and mitigation strategies.)

Given the speed of change in this field, physicians must proactively monitor regulatory updates and adapt their practices accordingly. Verifying licensure for all states in which patients are located, using only FDA-cleared or approved RPM devices, ensuring vendor compliance with privacy laws, staying current on reimbursement policies, and documenting patient consent for virtual care are all actionable steps to minimize liability and optimize patient outcomes. As virtual care continues to evolve, ongoing vigilance and adaptation are essential for both legal compliance and high-quality patient care.

Key Liability Risks in Virtual Care

Medical Malpractice in Telehealth

As telehealth becomes an increasingly integral part of healthcare delivery, physicians must recognize that the risk of medical malpractice remains ever-present—albeit in new and evolving forms. While virtual care offers unprecedented convenience and access, it also presents unique challenges that can contribute to adverse outcomes and, consequently, liability exposure.

One of the most significant risks in telehealth is the potential for missed or delayed diagnoses due to the inherent limitations of remote assessment.^2,69 The inability to perform a comprehensive physical examination, reliance on patient-reported symptoms, and incomplete or fragmented medical histories can all compromise diagnostic accuracy.^2,5,69 These limitations may be further compounded by the challenges of establishing rapport, assessing nonverbal cues, and ensuring clear communication through digital platforms. In addition, documentation in virtual settings can be inconsistent or incomplete, increasing the risk of miscommunication and undermining the legal defensibility of clinical decisions. The HHS OIG has recommended more thorough documentation for RPM claims, including details on patient education about device use and evidence that providers reviewed the health data to manage the patient’s condition.⁶⁷ A particularly critical area of liability arises when there is inadequate escalation from virtual to in-person care.^2,69 The failure to recognize or act upon “red flag” symptoms that warrant immediate evaluation can have devastating consequences. The high-profile case of Philip Tong in December 2023 illustrates these risks vividly. Mr. Tong, a patient with complex chronic illness, died following a virtual visit in which his emergent symptoms were not adequately recognized or escalated. The lawsuit against One Medical alleges that clinicians failed to appreciate the severity of his condition, resulting in inadequate triage and insufficient follow-up.^2,3,4,5 This case underscores that the standard of care does not diminish in virtual settings; physicians are held to the same clinical expectations as they would be in-person.^2,70

Such cases allege several systemic contributors to adverse outcomes in telehealth.^2,69 Staffing shortages, inadequate clinician training in virtual care protocols, and productivity pressures can all play a role in missed or delayed recognition of critical symptoms.^2,5 These examples highlight the importance of robust protocols for identifying and escalating emergent symptoms in virtual care environments.² Documentation of clinical reasoning, clear communication with patients regarding limitations of virtual visits, and timely referral to in-person care when indicated are all essential practices for mitigating liability.

Ultimately, the lessons from both litigation and regulatory scrutiny are clear: physicians must approach telehealth encounters with the same diligence and attention to detail as traditional visits. This includes thorough documentation, careful assessment of symptoms, clear communication of follow-up instructions, and the development and implementation of protocols to ensure that urgent conditions are not overlooked. As telehealth continues to evolve, ongoing education, training, and quality improvement efforts will be vital for maintaining patient safety and minimizing malpractice risk. ^5,46,47

Remote Patient Monitoring (RPM) Risks

Remote patient monitoring (RPM) has emerged as a cornerstone of modern virtual care, enabling physicians to track patient health metrics such as vital signs, blood glucose, and cardiac rhythms in real time using FDA-cleared devices.^6,22,24,48 RPM offers significant benefits for chronic disease management, early detection of complications, and patient engagement.^{22,23,24,49,50} However, its rapid expansion has also introduced a new set of liability risks that physicians must proactively address.

A risk associated with RPM is the reliability and accuracy of the devices themselves. Device malfunction, software or user errors, or inaccurate readings can result in missed or delayed identification of clinically significant changes, potentially leading to patient harm.^{22,51,52–56} Physicians who rely on these devices should verify that they are FDA-cleared and should remain vigilant for device recalls or post-market safety alerts.^6,57 In addition, clinicians must be prepared to respond to device-generated data in a timely and clinically appropriate manner.

Another concern is the phenomenon of data overload. RPM platforms can generate high quantities of patient data, including frequent alerts and abnormal readings. When practices lack robust protocols for triage and review, there is a substantial risk that clinically important alerts may be missed or not acted upon promptly.^58,59 Allegations of delayed physician response to abnormal data have been seen in recent litigation involving RPM, with lawsuits alleging that providers failed to intervene when remote monitoring indicated acute deterioration or emergent symptoms.^6,60,71 Such cases underscore the need for clear workflows, adequate staffing, and defined escalation pathways to ensure that actionable information is not lost amid the volume of incoming data.

Patient misuse or misunderstanding of RPM devices represents a potential risk to accurate monitoring. Inadequate patient education regarding device operation, troubleshooting, and the limitations of remote monitoring can compromise data integrity and clinical decision-making. Physicians should provide thorough instruction and clear expectations for patients when and how to seek urgent in-person care if concerning symptoms arise.

Lawsuits further illustrate the complexity of RPM liability. For example, allegations of device malfunction, missed alerts, or delayed clinical response were central to claims of negligence and patient harm.^6,71 Issues that are increasingly scrutinized include not only the choices made by individual clinicians, but also the adequacy of system-wide protocols for monitoring, response, and patient communication.^6,71

To mitigate these risks, physicians should implement comprehensive protocols for device selection, data review, and escalation of care.⁶⁰ This includes regular training for clinical staff, collaboration with RPM vendors to ensure HIPAA compliance and data security, and ongoing review of workflow effectiveness. Furthermore, clinicians should stay informed about FDA guidance on RPM device approval and post-market surveillance, as regulatory expectations continue to evolve.^6,9,57,67

In summary, while RPM holds great promise for enhancing patient care, it also demands heightened attention to device reliability, data management, patient education, and regulatory compliance. By addressing these factors proactively, physicians can reduce liability exposure and ensure that the benefits of remote monitoring are fully realized.

Data Privacy and Security

The expansion of virtual care has brought data privacy and security into sharp focus, as physicians and healthcare organizations increasingly rely on digital platforms and remote monitoring devices to collect, transmit, and store sensitive patient information. The risks associated with breaches of protected health information (PHI) are significant and multifaceted. Telehealth platforms and RPM devices are attractive targets for cyberattacks, and even inadvertent lapses in security protocols can result in unauthorized access, exposure, or loss of patient data.^1,46,61,62 Such breaches not only compromise patient trust but also expose providers to regulatory enforcement actions, civil liability, and reputational harm.^46,62

Beyond technical vulnerabilities, inadequate patient consent and transparency regarding data use present additional liability risks.^60,63 Patients should be clearly informed about how their data will be collected, transmitted, stored, and potentially shared with third-party vendors. Failure to obtain and document appropriate consent can lead to legal challenges and undermine compliance with federal and state privacy laws.^{60, 63,67} This is particularly relevant in the context of virtual care, where the use of third-party vendors, cloud-based storage, and tracking tools is commonplace. Not all vendors may be fully compliant with the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Trade Commission (FTC) Act Section 5, which prohibits unfair or deceptive practices in the handling of consumer data.^1,46,62

Physicians should vet the privacy and security practices of all telehealth and RPM vendors they want to partner with, confirming that vendors adhere to HIPAA and FTC requirements.⁴⁶ Regular review of vendor compliance, ongoing staff training, and periodic audits of security practices are recommended operational safeguards.^{46, 62} Moreover, physicians should stay abreast of evolving federal and state regulations, as well as guidance from regulatory agencies, to ensure continued compliance in a rapidly changing digital landscape.^46,60,64

In summary, safeguarding patient privacy and maintaining robust data security are foundational obligations in virtual care. By prioritizing transparency, informed consent, and vigilant oversight of technology partners, physicians can mitigate the risk of data breaches and regulatory violations, thereby protecting both their patients and their practices.

Risk Mitigation Strategies for Physicians

As virtual care becomes increasingly embedded in clinical practice, physicians must adopt comprehensive risk mitigation strategies to protect both their patients and their professional standing. The evolving legal landscape and the particular challenges of telehealth and remote patient monitoring (RPM) demand a proactive, multi-faceted approach. Key strategies fall into three domains: clinical best practices, operational safeguards, and regulatory compliance.

Clinical Best Practices

Clear, thorough documentation remains a cornerstone of effective risk management in virtual care.⁶⁷ Physicians should meticulously record all virtual encounters, including clinical reasoning, patient-reported symptoms, and the rationale for treatment decisions.^5,67 Given the unique nature of telehealth and RPM, it is essential to obtain and document informed consent that specifically addresses the limitations and risks of virtual modalities.^60,67 This consent process should include discussion of potential technology failures, privacy considerations, and the circumstances under which escalation to in-person care is necessary.⁶⁰

Robust protocols for recognizing and escalating “red flag” symptoms are critical, as demonstrated by recent litigation such as the Tong case.^2,5 Physicians should be trained to identify symptoms or situations that warrant immediate in-person evaluation and ensure that patients understand when and how to seek urgent care.² In the context of RPM, clinicians must also educate patients on the correct use of monitoring devices, the importance of accurate data input, and the limitations of remote monitoring in detecting all potential health concerns.^2,5,46,60,65

Operational Safeguards

Operational safeguards are essential for minimizing liability in virtual care environments.^2,5 All clinicians and support staff should receive regular training on telehealth and RPM protocols, including the recognition and management of critical symptoms.^5,46,47 Practices should vet telehealth and RPM vendors for compliance with HIPAA and Federal Trade Commission (FTC) requirements, as well as review vendor security practices to protect patient data.^1,46 Periodic audits of virtual care workflows and outcomes can help identify vulnerabilities, track adherence to protocols, and support continuous quality improvement.^46–62

Effective data management systems should be in place to handle the volume of information generated by RPM, including reliable triage processes and clear escalation pathways for abnormal findings.^2,58,59 Establishing clear lines of responsibility for data review and patient follow-up is vital to ensuring that no critical alerts are missed.²

Regulatory Compliance

Staying abreast of regulatory developments is fundamental to risk mitigation. Physicians, or their advisors, should monitor updates and guidance from the Centers for Medicare & Medicaid Services (CMS), the FDA, state medical boards, and relevant professional societies.^6,57 This includes understanding the requirements for licensure in all jurisdictions where patients are located, especially in light of how the IMLC is evolving.^6,8,27 Ensuring that all RPM devices in use are reliable, well tested, FDA-cleared, and that device-related adverse events are reported as required, further reduces regulatory risk.^6,9,57

By integrating these clinical, operational, and regulatory strategies, physicians can reduce their liability exposure while delivering high-quality, patient-centered virtual care. Proactive risk management not only safeguards individual practices but also strengthens patient trust and the sustainability of virtual care as a central component of modern healthcare delivery.

Conclusion

As virtual care cements its role in modern healthcare, physicians must remain vigilant to the unique liability risks it presents. By embracing robust clinical protocols, operational safeguards, and ongoing regulatory compliance, clinicians can mitigate these risks while delivering safe, effective, and patient-centered care. The landscape will continue to evolve, making continuous education and adaptation essential for protecting both patient well-being and professional integrity in this rapidly changing environment.