Telehealth Malpractice: Same Standard, New Risks

Telehealth solved a real access problem, and it created a genuinely new set of legal questions that didn’t exist when every visit happened in an office. The good news for patients: courts have refused to let the format itself become an excuse. The complications: licensing, prescribing, and who’s actually responsible when the platform itself is part of the problem.

Quick answer: Telehealth care is judged by the exact same standard of care as an in-person visit — no separate, more lenient rule for remote care exists. The practice of medicine is legally deemed to occur where the patient is located, so a provider generally must be licensed in the patient’s state, not just their own — and practicing without that license can void the provider’s own malpractice insurance. Prescribing a controlled substance via telehealth without an in-person exam currently rests on a temporary DEA exception, extended repeatedly and currently running only through the end of 2026. And where a platform’s own business practices — not just one provider’s judgment — contributed to the harm, the platform itself can potentially be a defendant, illustrated by Cerebral’s $3.6 million federal settlement over internal pressure to prescribe stimulants.

The Standard of Care Doesn’t Change — But the Facts Underneath It Do

Courts and state medical boards have been consistent on this point: telehealth care is held to the same standard of care as in-person care. There is no separate, more forgiving rule that excuses a missed diagnosis or an inappropriate prescription simply because the visit happened over video or by phone rather than in an examination room.

What genuinely changes is the underlying factual question a court or jury has to answer: was a remote visit actually appropriate for this specific condition, or did it require an in-person examination, imaging, or testing the provider should have recognized and recommended instead of proceeding remotely anyway? A provider who reasonably concludes a condition can be safely evaluated by video and turns out to be wrong is judged the same way any provider is judged for an honest clinical misjudgment. A provider who proceeds remotely despite red flags that should have prompted an in-person referral is judged the same way a provider who ignored those same red flags in an office would be.

Licensing: The Threshold Question Most Patients Never Think to Ask

Here is a genuinely important, frequently overlooked fact: the practice of medicine is legally deemed to occur where the patient is physically located at the time of the visit — not where the provider is based, and not where the provider happens to be licensed. A provider treating patients across state lines generally needs to be licensed in every state where those patients are located, subject to specific exceptions and to interstate arrangements like the Interstate Medical Licensure Compact, which streamlines — but does not eliminate — the licensing requirement for participating states.

Why this matters beyond a technicality: if your provider wasn’t actually licensed in your state, that failure is itself relevant evidence in a malpractice claim, since practicing without proper authorization is a violation of the applicable standard on its own. More practically and more urgently, practicing without proper licensure in the patient’s state can void the provider’s own malpractice insurance coverage for that visit — meaning a claimant can have a fully valid claim against a provider who, it turns out, has no insurance actually covering it. Confirming a telehealth provider’s licensing status in your specific state, early, is worth doing rather than assuming it was handled correctly.

Prescribing Controlled Substances: A Temporary Rule, Not a Permanent One

The Ryan Haight Online Pharmacy Consumer Protection Act generally requires at least one in-person medical evaluation before a provider can prescribe a controlled substance via telemedicine. Since the COVID-19 pandemic, the DEA has repeatedly issued temporary exceptions waiving that in-person requirement, allowing Schedule II–V controlled substances to be prescribed via telehealth without it — most recently extended through a fourth temporary extension, effective January 1, 2026 through December 31, 2026.

The word “temporary” is doing real work here. Despite years of extensions, the DEA has not finalized a permanent rule, and whether this flexibility continues past its current expiration is a genuinely open regulatory question rather than something to assume will simply continue. A patient currently receiving a telehealth-prescribed controlled substance — for ADHD, anxiety, or another condition — is relying on a rule that has been renewed four times but has not yet been made permanent.

When the Platform Itself Is the Problem

Some of the most consequential telehealth liability exposure has come not from an individual provider’s clinical misjudgment, but from a platform’s own business practices. Cerebral, a telehealth mental health company, paid more than $3.6 million to resolve a Department of Justice investigation into internal practices that allegedly pressured its providers to prescribe ADHD stimulants like Adderall more heavily — reportedly including financial incentives tied to prescribing volume and disciplinary pressure on providers who prescribed less — in order to boost patient retention and revenue, between February 2021 and October 2022.

Where a platform’s own incentive structure, inadequate provider staffing or supervision, or clinical protocols themselves contributed to substandard care, that can support a direct claim against the platform, structurally similar to the negligent-supervision and negligent-retention theories our guide to vicarious liability and negligent entrustment describes in other contexts — the claim targets the company’s own conduct, not merely the individual provider acting within it.

Evidence That Actually Decides These Cases

• The complete visit record — video, audio or message logs, and their exact timestamps, which telehealth platforms typically retain more completely than a paper office-visit record would generate
• Confirmation of the provider’s licensing status in your specific state at the time of the visit
• The platform’s own clinical protocols, and whether they were actually followed for your specific presentation
• Expert testimony on whether your condition could be appropriately evaluated remotely at all, or required an in-person examination the provider should have recommended
• The platform’s internal policies on prescribing metrics, incentives and provider oversight, where a platform-level claim is being considered

Practical Steps

1. Request your complete telehealth visit record, including any messaging or portal communications, not just a summary note.
2. Confirm whether your provider was actually licensed in your state at the time of the visit.
3. Get an independent medical opinion on whether your specific condition could reasonably be evaluated remotely, or should have prompted an in-person referral.
4. If a controlled substance was prescribed without an in-person exam, understand that this currently rests on a temporary federal exception, not a permanent rule.
5. Consider whether the platform’s own practices, not just the individual provider, contributed to the harm — particularly where prescribing incentives or inadequate oversight are involved.
6. Consult an attorney experienced in telehealth malpractice specifically, given how much of this area turns on licensing and regulatory questions an ordinary malpractice claim doesn’t raise.

Sources & Further Reading

• Ryan Haight Online Pharmacy Consumer Protection Act of 2008, 21 U.S.C. § 829(e) — the in-person evaluation requirement for prescribing controlled substances via telemedicine
• DEA temporary extensions of COVID-19 telemedicine flexibilities for controlled substance prescribing, most recently effective through December 31, 2026
• State medical board position statements on telemedicine, generally holding telehealth care to the same standard of care as in-person care
• Interstate Medical Licensure Compact — the streamlined, but not universal, multi-state licensing pathway for physicians
• U.S. Department of Justice settlement with Cerebral, Inc. (2024) — resolving an investigation into internal prescribing-incentive practices for ADHD stimulant medications
• See our guides to the four elements of a medical malpractice claim for the underlying standard-of-care framework this guide applies to a remote-care context, and vicarious liability and negligent entrustment for the negligent-supervision theory behind a direct claim against a telehealth platform itself