Telehealth and Malpractice in Virginia: New Way to See the Doctor, Same Standard of Care
In February, a video visit with your doctor was a novelty. By April, it was often the only way to be seen at all. The pandemic accomplished in two months what a decade of policy papers could not: telehealth is now a routine part of medicine in Virginia, from primary care check-ins to specialist consults to mental health treatment.
Most of the time, that is good news — care delivered safely to people who might otherwise have skipped it. But a new way of practicing medicine raises an old question: what happens when it goes wrong? The answer, in Virginia, is reassuringly simple. The technology changed. The standard of care did not.
The same duties apply on video
A Virginia physician who treats a patient — in an exam room or over a webcam — owes that patient the degree of skill and diligence a reasonably prudent practitioner in the field would exercise. Nothing about a video connection dilutes that duty. Telehealth is a modality of care, not a lower tier of it.
That principle has practical consequences, because telemedicine has genuine limits. A camera cannot palpate an abdomen, listen to a heart, or take an accurate blood pressure without home equipment. The standard of care therefore includes knowing what telehealth cannot do:
- The duty to escalate. A reasonably prudent provider recognizes when a complaint cannot be safely evaluated remotely — chest pain, acute abdominal pain, neurological changes — and directs the patient to in-person or emergency care. "See how it goes" is not a diagnosis.
- The duty to see what's shown. Poor lighting and a pixelated rash are not excuses; if the image is inadequate to evaluate, the answer is an in-person visit, not a guess.
- The duty to follow up. Remote care makes it easier for abnormal results and worsening symptoms to fall through the cracks. Systems for follow-up are part of reasonable care.
- Licensure and records. A provider treating a patient located in Virginia must generally be authorized to practice here — pandemic emergency flexibilities have relaxed some licensure rules — and telehealth visits must be documented like any other encounter.
Virginia has actually been ahead of most states on the coverage side: for a decade, Virginia Code § 38.2-3418.16 has required insurers to cover services delivered by telemedicine, and 2020's emergency expansions built on that foundation.
Informed consent translates to the screen as well. A patient is entitled to understand not only the risks of a proposed treatment but the limitations of the format in which care is being delivered — what a remote evaluation can and cannot rule out. And prescribing carries its own guardrails: issuing medication, particularly controlled substances, requires an adequate evaluation and a bona fide practitioner-patient relationship, obligations that federal and state emergency flexibilities have adjusted but not eliminated this year.
If telehealth care goes wrong
A malpractice claim arising from a telehealth visit runs through the same framework as any Virginia medical negligence case: expert testimony establishing the standard of care and its breach, proof of causation, and the statutory damages cap under Virginia Code § 8.01-581.15 — currently $2.45 million for acts of malpractice occurring between July 1, 2020 and June 30, 2021, with the cap set by the date of the malpractice. The limitations period is generally two years, and this year's judicial-emergency tolling added time for claims running during the spring shutdown.
The recurring fact patterns we expect from the telehealth era are already visible: the missed diagnosis that an in-person exam would have caught; the failure to escalate a deteriorating patient; the prescription issued without adequate evaluation; the abnormal result no one called about. In each, the question will not be "was it telehealth?" but the question it has always been: did the provider act as a reasonably prudent practitioner would have?
What this means for injured people in Virginia
Patients can protect themselves now, before anything goes wrong. Be specific and complete about symptoms — the provider can only evaluate what you report and show. Ask directly: do I need to be seen in person? — and get the answer in the visit record. Save the portal messages and after-visit summaries. And if a remote visit left a serious condition undiagnosed or untreated, know that the video format is not a defense. The record of a telehealth encounter — often more complete than a paper chart, sometimes including the recording itself — can make these cases unusually well documented.
Telehealth is here to stay, and it should be. So is the standard of care.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.