With telemedicine enjoying increased popularity among physicians and many patients and eligibility for coverage by payers, many physicians and other providers are expanding their telemedicine services. While proper telemedicine care often benefits patients, providers and payers, physicians must recognize and manage the distinct liability risks telemedicine care can create for physicians, especially around diagnosis, privacy, documentation, billing, and fragmented follow-up. Telemedicine: dos and don’ts to mitigate liability risk; Telehealth and Patient Safety.
1. Know when telemedicine is appropriate
The biggest liability trap in telemedicine is using it for patients or conditions that require hands-on examination, urgent testing, or immediate procedural intervention. Telehealth and Patient Safety; Malpractice Risks with Telehealth: The Do’s and Don’ts. Physicians should maintain clear protocols that identify red flags, define which complaints are unsuitable for virtual-only care, and require prompt in-person referral when the virtual exam is inadequate for safe decision-making. Telehealth and Patient Safety; Telemedicine: dos and don’ts to mitigate liability risk.
2. Document the virtual encounter like it will be reviewed later
Risk management literature stresses that information gathered during a telemedicine visit should be preserved in the medical record to meet the standard of care. Telemedicine: dos and don’ts to mitigate liability risk. Documentation should note patient identity verification, location, consent to telemedicine, who else was present, technical limitations, history obtained, elements of the virtual exam, clinical reasoning, and why virtual management was or was not appropriate. (Telehealth Privacy Tips for Providers; Telemedicine: dos and don’ts to mitigate liability risk)
3. Make privacy and security part of the workflow
Federal guidance for providers recommends confirming the identities of everyone present at each telehealth session, using password-protected systems, creating unique user identifications, and routinely reviewing telehealth privacy and security settings. Telehealth Privacy Tips for Providers. HHS also states that providers have an ethical obligation to discuss privacy and security risks with patients and to stay current on legal requirements for HIPAA compliance. Telehealth Privacy Tips for Providers; HHS resources for providers about telehealth privacy and security.
4. Reduce misdiagnosis risk during the virtual exam
The Agency for Healthcare Research and Quality (AHRQ) identifies several contributors to diagnostic error in telehealth, including limited physical examination, poor communication, and reliance on patients or family members to collect or describe findings. Telehealth and Patient Safety. Practical safeguards include using structured telehealth exam techniques, asking patients to demonstrate symptoms or functional limitations on camera when appropriate, involving a family member or advocate if needed, and scheduling in-person follow-up whenever the diagnosis remains uncertain. Malpractice Risks with Telehealth: The Do’s and Don’ts; AHRQ Safety Program for Telemedicine.
5. Protect continuity of care
Telemedicine liability increases when care is fragmented and the treating physician lacks access to the broader clinical picture. Telehealth and Patient Safety; Performance Measures for Physicians Providing Clinical Care Using Telemedicine: A Position Paper From the American College of Physicians. Physicians should integrate telemedicine visits into the same record and follow-up system used for office care, communicate results and next steps clearly, and avoid isolated transactional encounters that lack accountability for ongoing management. Telehealth and Patient Safety; Performance Measures for Physicians Providing Clinical Care Using Telemedicine: A Position Paper From the American College of Physicians.
6. Use extra caution with prescribing
Prescribing decisions made through telemedicine can carry elevated risk when the diagnosis is uncertain, the patient relationship is thin, or the medication has significant abuse potential. Fourth Temporary Extension of COVID-19 Telemedicine Flexibilities; Special Registrations for Telemedicine and Limited State Telemedicine Registrations. Physicians should verify identity, review available prescription drug monitoring data where required, document medical necessity carefully, and use a lower threshold for in-person evaluation before prescribing controlled substances or escalating therapy. DEA and HHS Issue Final Telemedicine Rule for Buprenorphine Access; Telehealth Privacy Tips for Providers.
7. Train the practice, not just the physician
AHRQ’s telemedicine safety work shows that safer virtual care depends on practice-level workflows, education, and continuous review rather than individual clinical judgment alone. AHRQ Safety Program for Telemedicine; AHRQ Safety Program for Telemedicine. Staff should be trained on intake, privacy checks, escalation protocols, informed consent, patient instructions, and what to do when technology fails during a clinically significant encounter.AHRQ Safety Program for Telemedicine; Telehealth Privacy Tips for Providers.
8. Confirm malpractice insurance coverage and regulatory compliance
Liability management also includes confirming that malpractice coverage extends to telemedicine services and that the practice complies with applicable licensing, privacy, and prescribing rules. Source 110; Telehealth Privacy Tips for Providers. This is especially important for cross-border care, platform-based practice models, and remote prescribing arrangements that can create added regulatory exposure, particularly as prescribers generally simultaneously must comply with licensing, regulatory and ethical requirements in both the location of the prescriber, the patient, and where the telemedicine corporation is incorporated and otherwise has sufficient contacts to be subject to state regulation. Source 110; Special Registrations for Telemedicine and Limited State Telemedicine Registrations.
9. Follow applicable Medicare or other applicable Public or private plan provider billing and documentation requirements
Physician and other telemedicine providers also should carefully follow coverage and documentation requirements of the Meficare or other coverage of the patient to avoid coverage denials and mitigate fraudulent billing risks.
Physicians also need to remember that telemedicine compliance is not uniform across payers. Medicare operates under a detailed federal framework that defines covered telehealth services, places conditions on audio-only billing, and has drawn recent Department of Health and Human Services (HHS) Office of Inspector General (OIG) scrutiny over coding and improper payments. What to Know About Medicare Coverage of Telehealth; Medicare payment policies; CMS Could Strengthen Medicare Program Safeguards To Prevent and Detect Potentially Improper Payments for Virtual Care Services) Private payer rules are often driven by state parity statutes and insurer-specific policies, which can differ on payment parity, audio-only coverage, documentation standards, and utilization controls. Requirements for Private Payer Telehealth Reimbursement; Audio-Only Telehealth Post-PHE – Medicare, Medicaid, and Private Payers.
Physicians should know that the Centers for Medicare and Medicaid Services (CMS) and the OIG are scrutinizing Medicare telemedicine billing more closely, which raises liability and compliance risk even when the underlying care is clinically appropriate.
In April 2026, OIG reported that CMS made about $1.96 million in potential revenue improper payments for 173,287 virtual check-in services and about $298,200 in potential improper payments for 10,237 e-visit services, and recommended stronger system edits, clearer code descriptions, and more provider education. CMS Could Strengthen Medicare Program Safeguards To Prevent and Detect Potentially Improper Payments for Virtual Care Services.
The OIG report found that CMS could save millions by strengthening safeguards against improper payments for virtual check-ins and e-visits. The audit identified over $2.26 million in potentially improper payments from 2019 to 2022, primarily due to lack of system edits for services bundled with other care. CMS Could Strengthen Medicare Program Safeguards To Prevent and Detect Potentially Improper Payments for Virtual Check-in and E-visit Services. The OIG report’s recommends CMS tighten requirements and system and audit controls to detect and redress improper telemedicine billing and reimbursement practices including:
Past program-integrity work on Medicare telehealth services also identified billing patterns that can trigger further scrutiny, including billing both a telehealth service and a facility fee for most visits and patterns suggestive of duplicate or otherwise inappropriate claims. Medicare Telehealth Services During the First Year of the Pandemic: Program Integrity Risks.
- Improper Virtual Check-ins: Approximately $1.96 million in payments occurred for virtual check-ins that took place within 7 days after or 24 hours before a related Evaluation and Management service, violating Medicare rules.
- Duplicative E-Visits: Around $298,200 in payments were for e-visits provided within 7 days of another e-visit for the same patient and diagnosis.
- System Limitations: CMS and Medicare Administrative Contractors (MACs) lacked automated system edits to detect these related, closely timed services.
For physicians, the practical lesson is that telemedicine documentation, modifier use, code selection, supervision rules, and internal billing audits should be treated as core risk-management functions rather than back-office details. As a result, risk management should include payer-specific billing protocols rather than assuming one telemedicine workflow satisfies Medicare and commercial plan requirements alike. Physicians and other telemedicine providers that serviced Medicare or Medicaid patients also should consider conducting attorney-client privileged audits of previously billed care to assess exposures to potential CMS and its auditor’s scrutiny expected in response to OIG’s recommendations.
10. Manage FTC and deceptive advertising risk
Telemedicine liability is not limited to malpractice. Marketing claims can also create regulatory exposure under Section 5 of the FTC Act when ads misstate price, expected outcomes, consumer reviews, cancellation terms, or the nature of clinician access. (FTC Takes Action Against Telemedicine Firm NextMed; Health Products Compliance Guidance) In 2025, the FTC took action against telemedicine company NextMed alleging misleading prices, fake reviews, deceptive before-and-after images, and unsubstantiated average weight-loss claims used to sell GLP-1-related programs. FTC Takes Action Against Telemedicine Firm NextMed; FTC Approves Final Order against Telehealth Provider NextMed.
Deceptive or misleading marketing, communications or actions also can create informed consent and other disciplinary and malpractice risks.
For physicians and telemedicine practices, the safest rule is that promotional statements should match the actual patient experience and be supportable with competent evidence. Federal Trade Commission; Health Products Compliance Guidance.
Risk-management steps include reviewing websites and social ads for hidden fees, avoiding guarantees or typical-results claims without substantiation, ensuring testimonials come from real patients with required disclosures, preserving records supporting objective claims, and aligning cancellation, refund, and auto-renewal terms with what is clearly disclosed to consumers.
Practical takeaways
The safest approach is not to treat virtual care as identical to in-person care in every setting, but to use telemedicine with clear workflows, strong documentation, and low thresholds for escalation to in-person evaluation when clinical uncertainty is high. Performance Measures for Physicians Providing Clinical Care Using Telemedicine: A Position Paper From the American College of Physicians; Malpractice Risks with Telehealth: The Do’s and Don’ts.
For most physicians, the best liability strategy is simple: use telemedicine where it adds value, document carefully, protect privacy, keep care connected, ensure fulfillment of applicable payer requirements before naming coverage claims, and convert to in-person care quickly when the virtual format leaves too much uncertainty. Telemedicine: dos and don’ts to mitigate liability risk; Telehealth and Patient Safety; Telehealth Privacy Tips for Providers.
Want more information? The author of this article, Cynthia Marcotte Stamer has worked extensively on telemedicine and other health care legal and operational risk management and compliance for more than 30 years. If you have questions about this or other health care concerns, contact the author.
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About the Author
Peer recognized as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in Health Care Law, Labor and Employment Law; ERISA & Employee Benefits,” and “Business and Commercial Law,” Cynthia Marcotte Stamer is an A Martindale-Hubble “AV-Preeminent” (Top 1%) attorneys board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on telemedicine, PBM, pharmacy and pharmaceutical and other health care, managed care, insurance, and insured and self-insured contracting, design, administration and regulation..
Author of numerous highly regarded works on telemedicine and other health care practices and concerns, current American Bar Association (ABA) Tort Trial and Insurance Practice Section Medicine and Law Committee, past Chair of the ABA International Section Life Sciences Committee and the ABA Health Law Section Managed Care & Insurance Interest Group, and past Group Chair and current Welfare Benefit Committee Co-Chair of the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health and other privacy and data security and other health industry legal, public policy and operational concerns.
Ms. Stamer’s work throughout her career has focused heavily on working with health care providers and organizations; managed care, health and other employee benefit plan, and insurance programs; health, Human Resources and other data abd technology; and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As a part of this work, she has continuously and extensively worked with domestic and international health plans, their sponsors, fiduciaries, administrators, and insurers; managed care and insurance organizations; third party administrators and other health benefit service providers; hospitals, health care systems, physicians and other health care providers, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; EMR, claims, payroll and other technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies.
She also has extensive experience helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology, data security and breach and other health IT and data; STARK, ant kickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care; internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement; and other strategic and operational concerns.
Author of a multitude of highly regarded publications and presentations, Ms. Stamer is widely recognized for her thought leadership on these and other health care, managed care and other health plan,and other health industry matters. In addition, Ms. Stamer contributes her time and leadership to numerous policy, professional, civil and other organizations including service as the, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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