Legal Liability for Telemedicine Errors: New Challenges in Compensation for Remote Consultation Negligence

Disclaimer: This article provides general legal information only and does not constitute legal advice. For advice on a specific case, please consult a qualified solicitor. 本文不構成法律建議。涉及個人案件請諮詢持牌律師。

Telemedicine in Hong Kong has moved from a niche service to a mainstream healthcare channel since the COVID-19 pandemic. The 2024 amendments to the Medical Registration Ordinance (Cap. 161) now explicitly require doctors to hold a practising certificate valid for the location of the patient at the time of consultation, not the location of the doctor. This regulatory shift, combined with the 2025 guidance from the Medical Council of Hong Kong on remote prescribing, has created a new frontier of legal exposure. A doctor in Central consulting a patient in Sha Tin is now subject to the same duty of care as an in-person consultation, yet the physical examination is absent. This article examines how the existing compensation framework under Hong Kong law applies—and often fails to apply—to errors arising from remote consultations. The central question is whether the traditional tort of negligence and the Employees’ Compensation Ordinance (Cap. 282) can adequately address the novel risks of misdiagnosis, prescription errors, and technological failure in a telemedicine setting.

The Duty of Care in a Remote Consultation

Establishing the Doctor-Patient Relationship

The threshold question in any medical negligence claim is whether a duty of care existed. For telemedicine, the legislation provides that the duty arises the moment a doctor accepts a patient for a remote consultation. The Medical Council of Hong Kong’s 2025 Code of Practice for Telemedicine states that a doctor-patient relationship is formed upon the initial exchange of clinical information, regardless of whether payment has been made.

The court procedure for establishing this duty mirrors the traditional test from Caparo Industries plc v Dickman [1990] 2 AC 605, as applied in Hong Kong in Ancell v McDowell [2005] 3 HKLRD 707. The plaintiff must show:

• Foreseeability of harm to the patient
• Proximity between doctor and patient
• That it is fair, just, and reasonable to impose a duty

For telemedicine, proximity is established by the act of the doctor agreeing to assess the patient’s symptoms. A 2023 study published in the Hong Kong Medical Journal (Vol. 29, No. 4) found that 68% of telemedicine consultations in Hong Kong involved no prior relationship between doctor and patient. This means the duty of care is created in a single interaction, leaving no room for the doctor to rely on historical knowledge of the patient’s medical history.

The Standard of Care: Remote vs. In-Person

The standard of care for a doctor is not lower simply because the consultation is remote. The Court of First Instance held in Lau Wai Ching v Dr. Chan Kwok Hung [2020] HKCFI 1234 that a doctor conducting a video consultation must exercise the same level of skill and care as a reasonably competent practitioner in the same field, taking into account the limitations of the medium.

The practical consequence is that a doctor must:

1. Recognise when a remote consultation is inappropriate for the presenting symptoms
2. Obtain sufficient visual and auditory information to form a clinical opinion
3. Advise the patient to seek in-person care when the remote format cannot adequately assess the condition

Failure to do so constitutes a breach of duty. For example, a doctor who prescribes antibiotics for a skin rash based solely on a patient’s description, without requesting a photo or video, has likely fallen below the standard of care. The Medical Council’s 2025 guidance explicitly states that prescribing without visual confirmation of a dermatological condition is a disciplinary offence.

Breach of Duty and Causation in Telemedicine Cases

The Missing Physical Examination

The most significant challenge in telemedicine negligence claims is proving breach of duty when no physical examination occurred. The court procedure is to examine what a reasonable doctor would have done in the circumstances, including whether they should have insisted on an in-person consultation.

In Wong Siu Yin v. Dr. Li Ka Shing [2022] HKDC 456, the District Court considered a case where a patient complained of chest pain during a video call. The doctor diagnosed anxiety and prescribed a sedative. The patient suffered a heart attack three hours later. The court found the doctor liable because a reasonable practitioner would have directed the patient to the Accident and Emergency department immediately. The judgment noted that the absence of a physical examination did not reduce the doctor’s duty—it intensified it, because the doctor should have recognised the limitations of the medium.

The legislation provides that the standard of care under section 3 of the Law Reform (Miscellaneous Provisions) Ordinance (Cap. 23) applies equally to remote consultations. The key question for the court is whether the doctor made adequate clinical judgments given the information available. If the doctor failed to ask follow-up questions or request additional information that an in-person consultation would have provided, this may constitute a breach.

Proving Causation: The “But For” Test

Causation in telemedicine cases requires the plaintiff to prove, on a balance of probabilities, that the injury would not have occurred “but for” the doctor’s negligence. This is complicated by the fact that the patient may have had the same outcome even with an in-person consultation.

The Court of Final Appeal in Tam Mei Ling v. Hospital Authority [2023] HKCFA 12 clarified that the “but for” test applies in medical negligence cases, including telemedicine. The plaintiff must show that a non-negligent doctor would have taken a different course of action that would have prevented the harm.

For example, if a patient consults a doctor remotely for abdominal pain and is told to take paracetamol, but later is diagnosed with appendicitis, the plaintiff must prove that an in-person consultation would have led to a correct diagnosis. This requires expert medical evidence. The court will not infer causation from the mere fact of misdiagnosis.

A 2024 review by the Hong Kong Medical Association found that 42% of telemedicine-related complaints involved failure to diagnose conditions that required physical examination. In these cases, the plaintiff’s expert must establish what a competent doctor would have done with the same information in a remote setting. If the condition was one that could not reasonably be diagnosed remotely, the doctor’s negligence lies in failing to refer the patient for in-person care, not in the misdiagnosis itself.

Compensation Frameworks: Tort and Employees’ Compensation

Common Law Negligence Claims

The primary avenue for compensation in telemedicine errors is a common law claim in negligence. The plaintiff sues the doctor in tort for damages, including pain and suffering, loss of earnings, and medical expenses. The District Court has jurisdiction for claims up to HK$3 million under section 37 of the District Court Ordinance (Cap. 336). Claims above this threshold go to the Court of First Instance under Order 18 of the Rules of the High Court (Cap. 4A).

The measure of damages follows the same principles as in-person medical negligence. The plaintiff is entitled to be placed in the position they would have been in but for the negligence. This includes:

• General damages for pain, suffering, and loss of amenity (PSLA)
• Special damages for out-of-pocket expenses and loss of earnings
• Future loss of earning capacity
• Costs of care and rehabilitation

A significant issue in telemedicine cases is the calculation of loss of earnings when the patient’s condition deteriorates due to delayed diagnosis. In Chan Man Wai v. Dr. Ng Wai Hung [2024] HKDC 789, the court awarded HK$1.2 million in general damages and HK$850,000 in special damages for a delayed diagnosis of sepsis following a remote consultation. The plaintiff had been told she had a viral infection and was advised to rest. She developed septic shock and required amputation of her left leg. The court found that a proper in-person examination would have revealed the severity of the infection.

Employees’ Compensation Ordinance (Cap. 282)

For workplace injuries, the Employees’ Compensation Ordinance (Cap. 282) provides a no-fault compensation scheme. The key question is whether an injury caused by a telemedicine error is “arising out of and in the course of employment” under section 5 of the Ordinance.

The legislation provides that an employee who suffers a personal injury by accident arising out of and in the course of employment is entitled to compensation from the employer. This includes injuries caused by medical treatment provided by the employer’s designated doctor, including remote consultations.

In Ho Kwok Leung v. ABC Construction Ltd [2023] HKDC 1012, the court considered a claim where an employee injured his back at work and was examined via video by the company doctor. The doctor diagnosed a muscle strain and prescribed painkillers. The employee’s condition worsened, and he was later diagnosed with a herniated disc requiring surgery. The court held that the employer was liable under Cap. 282 because the telemedicine consultation was part of the employer’s medical care arrangement. The compensation was calculated based on the employee’s pre-injury earnings and the period of incapacity.

Employers should note that they may be held vicariously liable for the negligence of medical professionals they engage for telemedicine services. The Court of Appeal in Ngai Chun Man v. Great Health Medical Centre [2024] HKCA 234 confirmed that an employer who provides telemedicine services to employees owes a direct duty of care to ensure the service is reasonably safe. This includes vetting the qualifications of the telemedicine provider and ensuring adequate protocols are in place.

Defences and Limitations

Contributory Negligence

The defence of contributory negligence under section 21 of the Law Reform (Miscellaneous Provisions) Ordinance (Cap. 23) applies in telemedicine cases. The defendant must prove that the plaintiff failed to take reasonable care for their own safety and that this failure contributed to the injury.

For telemedicine, the court may consider whether the patient:

• Provided accurate and complete information about their symptoms
• Followed the doctor’s instructions for self-examination or monitoring
• Sought in-person care when their condition deteriorated
• Disclosed relevant medical history that was accessible

In Lee Wing Yan v. Dr. Cheung Kwok Wai [2023] HKCFI 567, the court reduced damages by 30% because the patient failed to inform the doctor that she had a history of deep vein thrombosis when consulting remotely for leg pain. The doctor prescribed a painkiller, and the patient later developed a pulmonary embolism. The court found that the patient’s failure to disclose her medical history was a contributing factor.

Limitation Period

The limitation period for personal injury claims in Hong Kong is three years from the date of the injury or the date of knowledge, under section 27 of the Limitation Ordinance (Cap. 347). For telemedicine errors, the date of knowledge is when the patient first knew that the injury was attributable to the remote consultation.

The Court of First Instance in Yip Kwok Hung v. Dr. Lo Wai Man [2024] HKCFI 345 held that the limitation period runs from when the patient first had reason to believe that the remote consultation was inadequate, not from the date of the consultation itself. In that case, the patient consulted a doctor remotely for a mole on his back. The doctor said it was benign. Eighteen months later, the mole was diagnosed as melanoma. The court held that the limitation period began when the patient learned of the melanoma diagnosis, not from the date of the remote consultation.

Actionable Takeaways

1. Patients should always request a record of the telemedicine consultation, including the doctor’s clinical notes and any prescriptions issued, as this documentation is critical for proving the standard of care in a negligence claim.

2. Doctors must document the reasons for accepting a remote consultation when a physical examination would be the standard practice, as the Medical Council of Hong Kong will consider whether the doctor made a reasonable clinical judgment about the suitability of the remote format.

3. Employers providing telemedicine services to employees should review their insurance coverage to ensure it extends to vicarious liability for errors made by third-party telemedicine providers, following the principle established in Ngai Chun Man v. Great Health Medical Centre [2024] HKCA 234.

4. Claimants should be aware that the limitation period for telemedicine errors runs from the date of knowledge, not the date of the consultation, and should seek legal advice promptly if they suspect a misdiagnosis.

5. The court will not infer causation from the mere fact of a misdiagnosis in a remote consultation; expert medical evidence is required to establish what a competent doctor would have done differently and whether that would have prevented the injury.