Medical Liability in the Field of Telemedicine 

Introduction 

For many patients, the search for medical advice begins with a phone call, an email, or an online search. As a result, medical consultations and treatments are increasingly provided remotely, without the physical presence of both physician and patient – a practice commonly referred to as telemedicine. The Swiss Society for Telemedicine and eHealth (SGT-MeH) defines telemedicine as medical consultation and treatment conducted through information and communication technologies (ICT) without the physician being physically present with the patient. 

Despite the numerous advantages that online consultations and therapies offer patients, telemedicine also raises new and fundamental legal questions, particularly with regard to liability for erroneous telemedical medical certificates and medical malpractice. 

Legal Framework 

From a liability perspective, erroneous telemedical consultations and medical certificates are governed primarily by the provisions on mandates under Articles 394 et seq. of the Swiss Code of Obligations (CO), just as in conventional in-person medical treatment. Accordingly, the physician, acting as the mandatary, does not owe the patient a specific therapeutic outcome but is required to perform the entrusted services faithfully and diligently in accordance with the rules of medical science and practice. 

The applicable standard of care depends on the circumstances of the individual case, including the type of treatment, the risks involved, the physician’s experience, and the resources available. In the context of telemedicine, this duty extends to maintaining adequate knowledge of current technological solutions and ensuring the proper use of digital tools. To comply with these requirements, physicians must always base their diagnoses and treatment decisions on reliable and sufficiently substantiated information. Consequently, when issuing a medical certificate or establishing a diagnosis, physicians may not dispense with a critical assessment of the facts or rely exclusively on the patient’s statements. Where uncertainty remains, an in-person examination may be required. 

In addition to the Swiss Code of Obligations, telemedical consultations in Swiss medical practices are governed by the Swiss Medical Association’s (FMH) Code of Professional Conduct, revised in 2023. The Code expressly provides that prevention, diagnosis, treatment, and follow-up care may be conducted through information and communication technologies, provided that the physician’s duty of care is ensured and the obligations regarding patient information and documentation are fulfilled. 

Telemedical Medical Certificates 

Particular liability issues arise in relation to telemedical medical certificates, especially concerning their evidentiary value and the physician’s duty of care. Since medical assessments in telemedicine often rely solely on information provided digitally or by telephone, such certificates generally carry less evidentiary weight in legal disputes than certificates issued following a personal examination of the patient. 

Even where a medical certificate contains an incorrect diagnosis despite comprehensive investigations, the Swiss Federal Supreme Court sets a high threshold for establishing physician liability. This is because the assessment of the substantive accuracy of a medical certificate must take into account that such certificates are inherently based on a physician’s interpretation of the facts and therefore inevitably contain subjective elements. The relevant benchmark is not the patient’s objective state of health but rather the physician’s professional assessment or diagnosis at the time the certificate was issued (Swiss Federal Supreme Court, judgment of 18 March 2008, 6B_99/2008, para. 2.4.1). 

Telemedical Malpractice 

Beyond the issue of erroneous telemedical medical certificates, the question also arises as to when a telemedical diagnostic or treatment error constitutes medical malpractice. According to prevailing legal doctrine and case law, a telemedical diagnostic or treatment error exists not only where a physician makes an entirely incorrect diagnosis or prescribes an inappropriate therapy, but also where the diagnosis or treatment can no longer be regarded as medically justifiable according to generally accepted professional standards and therefore fails to meet the objective requirements of medical practice (Swiss Federal Supreme Court, judgment of 1 September 2025, 6B_74/2024, para. 5.2.2). 

Regardless of whether a diagnosis or treatment is provided through telemedicine or during an in-person consultation, ambiguous clinical findings must be investigated using the diagnostic means reasonably available to the physician. Failure to do so may constitute negligence. Consequently, liability may also arise where a physician chooses an unsuitable or outdated treatment method despite the availability of appropriate and indicated telemedical tools. 

However, medical liability is not established merely because it later becomes apparent that another treatment option would objectively have been more effective. The decisive question is whether the chosen treatment appeared reasonable and medically justifiable at the time it was undertaken. Accordingly, any assessment of a breach of the duty of care in telemedicine, as in traditional medical practice, must be conducted ex ante rather than on the basis of hindsight after the damage has occurred. 

Conclusion 

In summary, telemedicine offers significant benefits by improving access to healthcare and increasing the efficiency of preventive care, treatment, and follow-up services. At the same time, it imposes heightened demands on physicians’ professional diligence. While the legal principles governing liability do not fundamentally differ from those applicable to traditional in-person treatment, the limitations inherent in remote consultations require particularly careful fact-finding, thorough medical assessment, and the appropriate use of digital technologies.