Telemedicine Malpractice Insurance Coverage in 2021

Telehealth Medical Malpractice Insurance | Avoid legal risk | S-Corp | PLLC

Whenever a Doctor cannot do good, he must be kept from doing harm

DISCLAIMER
The content of this publication will feature curated generic public access information related to doctors professional liability malpractice insurance in telehealth, that may be applicable to healthcare professionals in certain countries eg. the United States, with possible options that may exist for telemedicine malpractice insurance coverage. The reader is instructed to consult with their healthcare insurance providers and/or medical malpractice advisors in this regard. This publication was created for the sole purpose of general public information and education only.

Introduction to Telemedicine Law & Legal issues

Telemedicine involves using technology to deliver medical care from a distance. It has become a routine part of our lives since the COVID-19 outbreak in late 2019 and is practiced by medical professionals globally. As with the physical aspect of healthcare, medical malpractice, which is illegal, improper, or negligent professional medical behavior, may occur within the telemedicine space as well. As such, telemedicine malpractice insurance coverage is of significant importance in medical practice today.

As is evident amongst many US providers, EU member states and other applicable countries, operating and providing telehealth across state borders raises concerns related to the role of the provider as the primary care physician; with the sole responsibility of generating the primary diagnosis, initial management, treatment, prescription and reimbursement via insurance providers (national or private).

Negotiating such complexities is a red flag for insurance providers as there are difficulties in cost containment and continuity of care for their coverage claimants.

Ensuring that the right healthcare communication and services were rendered, with clear evidence of the correct billing and medical coding procedures is an added cost of operations.

In this publication, we will briefly discuss the nuances of medical malpractice issues that may involve digital health solutions, which healthcare entrepreneurs, providers and organisations should be cognizant of.

Common issues to medico legal jurisdiction and potential malpractice issues are commonly related to:

  • Advisory and educational content as mass media communication
  • Agreement structures between various actively participating parties
  • Diagnostic processes without full examination
  • Referral processes
  • Digital prescriptions
  • Due diligence and compliance to financial, legal, tax and other operational processes
  • Provider licensing
  • Professional standards
  • Patient and provider data security eg. HIPAA, GDPR, COPPA
  • FDA status on digital products eg. online healthcare apps and their functions
  • Advertising content
  • FTC issues
  • Telehealth coverage based on national/state borders for third party reimbursements
  • Terms of Use/Privacy policies
  • Miscellaneous local regulatory laws

Why Do Physicians Need Medical Malpractice Insurance Coverage For Telemedicine?

Even though telemedicine facilitates convenience, affordability, and efficiency for both patients and physicians, it also provides an increased opportunity for adverse experiences that may lead to professional liability.

Professional liability in medicine includes the possibility of getting sued based on damages arising from any form of medical work or consultation provided by a physician.

With the growing popularity and use of telemedicine, it has become an essential recommendation for doctors to procure specific insurance to combat the novel professional liability and malpractice claims that may arise from telemedicine.

Though telemedicine and telehealth solutions have been the buzzwords of 2020, their practice in the past 4 decades, in many health systems, have not met the same level of regulatory scrutiny like it is present nowadays.

Peer-to-peer networks and other forms of border-less communication by mainstream telecommunication platforms are under great pressure to practice due diligence, in the forms of cybersecurity threat audits, HIPPA compliance and perhaps a greater emphasis on private patient data encryption security – given the high levels of insurance claims fraud that have plagued electronic health solutions since the pandemic.

Additionally, telemedicine regulations are considerably complex. They differ across states and even require a secure network and workspace to ensure that no one else can access the client’s data or listen in on conversations, which means networks must be HIPAA compliant.

With the right telemedicine insurance coverage, a physician is protected from malpractice and professional liability claims regarding practices that possibly resulted in physical injury, property damage, additional medical expenses, etc.

It also covers the failure of products to perform, cyber and privacy coverage, and worldwide jurisdiction. There is also coverage for the cost of defending lawsuits related to these claims.

Diagnostic errors from telemedicine based consults may be higher than usual, but cannot be substantiated due to lack of incident report documentations of an unknown number of out of court settlements in most cases – confirmation bias may exist in current reports. With very little case law to draw upon, the “ground rules” for telemedicine malpractice risks is still largely undeveloped.

Key Areas of Patient Safety in Telehealth

State-specific and country specific medical licensure issues will govern how and which physician shall be permitted to render appropriate

Product liability insurance issues to ensure the highest quality standard and evidence-based data to justify benefit vs risk of implementation in the wider patient community, and be eligible for insurance reimbursements.

Continuity of care to ensure that physicians and patients residing in distant locations can still continue relevant communications, especially if either party migrates elsewhere, and a seamless transfer of available data to the next appropriate provider.

Which Components of Digital Health may need Medical Malpractice Insurance?

This essential protection is available for a wide range of medical practices offering telehealth medical services. This list includes (but certainly is not limited to) the following:

  • Telemedicine platforms and providers
  • mHealth apps
  • Remote patient monitoring tools
  • Artificial intelligence
  • ePharmacies
  • eHealth research involving data collection and analysis
  • Essentially, any company offering electronic telehealth services is a candidate for medical malpractice insurance for telemedicine.

What Risks and Damages does a Comprehensive Telemedicine Malpractice Insurance Cover?

The following list highlights available and possible coverage, individual insurers differ widely on which aspects that are able to underwrite, including scope, contect, premium and overall medicolegal reimbursement:

  • Bodily harm while using a digital health product or service
  • Suboptimal functioning of the device eg. remote patient monitor
  • Cyber attack leading to or resulting in ransomware, HIPPA errors and others
  • Technical installation, upgrading and other activities leading to delays in service provision
  • General Liability coverage – applicable to private enterprises of any size
  • Commercial property and business interruption

Worldwide jurisdiction – is a potentially complex geopolitical medico legal status if the originating site of patient and/or provider are not in the same geographic location, which is under jurisdiction of either party. Although no sovereign state may impose their national coverage rights (should they exist) onto another state, insurance reimbursement may become nullified if cross-border telemedicine transactions do occur (EU citizens may be eligible for some degree of reimbursement although data is unclear to the author at this moment).

There is potential for this activity to occur provided either party agrees to a tailor-made agreement in terms of practical healthcare communication, data transfer, out of pocket remuneration and other individual agreements prior to and during the transaction.

Practical Insights from Expert Medical Malpractice Organisations Regarding Telemedicine

Original content can be viewed here

LOW LIABILITY

Majority of medico legal risks, and jurisdiction of medical interaction is dependent on what the doctor is required to do in front of a healthcare-seeking individual. Organizations that employ healthcare providers have strict guidelines and best practices on what a provider is allowed to do and say, provide appropriate evidence-based interventions and proceed accordingly.

Classic doctor-patient interactions revolve around diagnosing a new case in a new patient based on initial history taking, physical examination, diagnostic procedures and/or even referral from other specialities who are not suited to assess the patient based on patient history communicated to them.

Most litigations arise out of errors surrounding the diagnosis and treatment of patients. Mistakes with diagnostic processes, harm occurring from procedures and of course medication errors. Telemedicine interactions have lesser opportunities of errors due to the inability for harm from physical examinations and inability of diagnosis (unless via data analysis from remote patient monitoring devices).

Telemedicine consults involving educational content, follow up on previously diagnosed and managed care and general communication on behavioural modification the like, have miniscule legal risks compared to in-person interactions.

LACK OF DATA

Since the inclusion of telehealth services in most health systems in developed countries, data regarding litigations and court settlements are sparse and practically non-existent since the past 40 years. However evidence exists of heightened risks in a 30-year career amongst certain specialities eg. ObGyn, Surgery, Ophthalmology where the majority of interactions have an interventional and therapeutic component.

Telemedicine is purely conversational and informative. There is absence of data on notable cases whereby errors in a virtual setting led to substantial damages being claimed. It is possible that arbitration leading to out of court settlements may have been done in a few select cases.

The overwhelming opinion is that lawsuits from telemedicine is unlikely to occur and also unlikely to proceed due to the unfavorable opportunity cost of court proceeding from such a low claim coverage, that most medical malpractice insurers usually provide (US insurance industry norm < $600,000 in very niche instances).

In practicality, it is not worth the legal firms’ time to provide malpractice services for a low probability of proceeding, processing, going to court and the overall claims that may or may not be awarded as commissions.

ELECTRONIC DOCUMENTATION

Documentation of the patient interaction is a standard practice in ensuring that the right experience was provided by the right person at the right time, in the right way. Using appropriate coding allows providers to bill the patients’ health insurance companies to justify their reimbursements.

Additionally the documentation process protects relevant parties from miscommunication or malicious activities by vested parties, who may be motivated by a non-health related agenda. Healthcare organisations place a great deal of emphasis on documenting treatment procedures to ensure effective billing above the requirement for legal protection, in some cases.

In telemedicine there are many options available for the online provider to document the interaction, in real time. There are digital portals to write notes in tandem to the consultation as it occurs, a separate dashboard to write up post-session notes and in many video chat portals, the video recording can be made available to either party almost immediately.

Such designs offer a convenient method for patients to ‘own their data’ as it is produced for later review or referral. Providers can be assured that this electronic documentation is unique, encrypted and cannot be altered.

In rare cases of a litigation case, all parties may be in a favorable position to present accurate data according to their recollection and be verified by identifiable proof.

female doctor holding iphone with pdf download of viosapp ebook about medical malpractice for telemedicine

Click here to download the ebook version of this blog

As a Telemedicine Provider, what options do I have for Comprehensive Medical Malpractice Coverage?

Telemedicine law is simply an extension of law governing medicine in general.
Cohen Healthcare Law Group

Medico legal jurisdiction and arbitration is by and large geographic and political in nature. Each state and country will have some form of medical jurisprudence laws governing standard best practices for recognised and certified providers.

Most countries have based their interpretation of ideal working models of a comprehensive health system, on the guidelines ratified in the World Health Organization, with individual execution of legal parameters based on their own sovereign rights of laws in their constitutions.

As a healthcare professional, interested in venturing into the potentially impactful and lucrative virtual care setting, it is advisable to seek appropriate legal counsel from your local attorneys.

Medical malpractice coverage applies to entities in differing scopes and pricing tiers. Established corporate structures, small business or individuals who wish to acquire legal protection may benefit from annual packages that provide a comprehensive protection in the form of:

  • General Liability
  • Professional Liability (Errors & Omissions)
  • Cybersecurity
  • Employee/Workers’ Compensation
  • Business owners policy
  • Employment practices liability insurance
  • Directors & Officers Insurance

Malpractice coverage for technology-based service platforms, with a strong focus on digital health, will ideally receive customised review processes to understand their complete business model and operations, whether it purely telemedicine, telehealth with remote patient monitoring, digital prescriptions or other remote digital services.

Providers who are employed under their services must receive adequate insurance protection whilst providing their virtual care processes.

Doctors employed in healthcare institutions, transitioning into telehealth, will upgrade their liability coverage based on existing relationships with their corporate insurance partners.

Similar coverage may be applicable to public sector institutions who have some form of telemedicine services for their national constituents and other citizens in their immediate catchment area.

Individual healthcare professionals seeking to begin their own virtual care practice may need to be more wary of complex and risky operations that insurance providers will not agree to partner with, even with ‘good faith’ initiatives for their communities.

Such potentially risky activities involve (and not limited to) primary remote diagnosis (with or without remote patient monitoring devices), internet prescriptions, prescribing controlled substances or potentially serious side effects due to the medications.

It is advisable for individual telemedicine providers to seek the appropriate legal counsel, and perhaps consider purchasing professional liability coverage under certain circumstances.

Many physicians have taken the initiative to register their professional services under the setting of an S-Corp or a form of Professional Limited Liability Company (PLLC). This action may allow for favorable legal protection and tax benefits as well, if applicable.

Use your best judgement. Do no harm.

 

David Feldman, MD, MAB, CPE, FAAPL, FACS

David Feldman, MD, MAB, CPE, FAAPL, FACS is Chief Medical Officer of The Doctors Company Group, where he leads the group’s education efforts in and is the primary spokesperson for trends and issues on patient safety and risk management. He is also senior vice-president and chief medical officer at Healthcare Risk Advisors, a New York subsidiary.

Interstate licensure for telehealth can fuel medical practice growth

The 3 Best Medical Malpractice Insurers In The US Providing Telemedicine Coverage For Doctors

Telemedicine is quite beneficial as it allows patients to access the care they need, and physicians can earn a living. However, as a doctor, it is crucial to cover your bases because errors can also occur in virtual practice. At times, even when you did not make a mistake, claims against you can be costly and time-consuming.

Finding the ideal medical malpractice insurance that covers telemedicine is recommended to protect your practice from potential problems in the future, and protecting your practice does not need to be a complicated process. The first step is to speak with your current provider, then do your necessary research.

There are numerous insurers offering telemedicine coverage to physicians; however, I recommend that you take the time out to make a list of what you need your coverage to surround, then undertake your due diligence to ensure you choose an insurer that best fits that criteria as some companies may not understand the scope of telemedicine. To help you along, I’ve developed a list of four highly-rated insurers who provide coverage for telemedicine medical malpractice for doctors.

State Volunteer Mutual Insurance Company (SVMIC)

As a 40-years-old veteran, SVMIC has an exceptional reputation. An in-house attorney manages each claim, and the policies include consent clauses and cybersecurity coverage. Additionally, SVMIC provides free education courses on risk management, managing stress, and using telemedicine in your practice.

CM&F

Your CM&F coverage is inclusive of the telemedicine services you provide. CM&F’s professional liability insurance policies offer coverage in line with your scope of practice and follow the regulations of the relevant federal or state laws that apply to the situation.

ProAssurance Group

ProAssurance is undoubtedly one of the industry’s most dependable as it relates to medical malpractice insurance. The company offers a range of policies, including an Excess and Surplus (E&S) Line that involves “ addressing a diverse set of needs,” such as telemedicine.

This is a short list of medical insurers in the United States, who may underwrite an appropriately customized coverage plan based on your needs and the contexts of your virtual medical practice.

  • Medical Protective
  • The Doctors Company
  • NORCAL
  • Proassurance
  • Aspen
  • ISMIE
  • Professional Solutions Ins. Co. (PSIC)
  • Coverys
  • Positive

CONCLUSION

What Kind of Medical Malpractice Coverage Applies to VIOS Providers?

Use your Best Judgement.
Document what you can.
Do no Harm.

document your vios telemedicine session Telehealth Medical Malpractice Insurance | Avoid legal risk | S-Corp | PLLC

If people understood that doctors weren’t divine, perhaps the odor of malpractice might diminish.
Richard Selzer

The VIOS platform and the VIOS+ virtual clinic are the key digital assets of ViOS, Inc. – a global conglomerate of international healthcare experts, providing very specialized telehealth consults, personalised counselling and remote second opinions.

Featuring a wide variety of board-certified medical experts, with atleast 10years of clinical experience in their field, based in the US, UK and many other overseas health systems.

Due to the hyper-local complex regulations governing insurance coverage, provider reimbursements, data-sharing and business models of certain telemedicine platforms, many providers and patients are unable to fully leverage the potential of digital health to help manage their health journeys

At ViOS, Inc., we allow for patient-guided selection of their preferred providers, via direct pay choices based on their skills credibility and immediate availability from anywhere in the world.

With a clear focus on assisting chronic disease patients (who are pre-diagnosed, prescribed management and procedures with their primary provider), our provider network has the opportunity to create personalised tertiary care content experiences in remote virtual sessions.

ViOS, Inc and its digital assets are under a comprehensive malpractice insurance coverage, that ensures a safe and secured interaction in a border-less global infrastructure, for patients and providers to interact from the comfort of their respective homes.

Due to our unique cross-border internationalized service offering, we are able to respect and abide by local regulatory processes as when applicable to the users and providers.

Citizens of any country are free to choose their preferred provider, choose to share their private health data within an encrypted environment and choose a follow up session at their convenience.

Our personalised care services allow for total patient anonymity and ownership of their data. With post-session audio-video recording of their private session made available to patients and providers immediately upon its conclusion.

Qualified providers can be confident in practising expert tertiary care guidance and stewardship of their concierge-style virtual practice, under the same umbrella as our corporate insurance plan, as independent contractors (with or without an S-Corp/PLLC status) to provide their high demand value to high net worth international patients.

With a clear focus on value-added conversational transactions which are non-diagnostic and non-pharmaceutical, there is a great opportunity to practice global telemedicine without the hassles of complex regulatory barriers and delayed third-party payment processes.

In the global access platform, the VIOS Providers can leverage their concierge-style digital access beyond borders, and with a much lower risk status.

By delegating medico-legal responsibilities to patient preference; a precise value-based services proposition, without the onus on primary diagnosis, prescriptions and direct alteration of existing management; tertiary-level virtual consultants are at a relatively low-litigation working environment.

As health systems are still adapting to the changing landscape of healthcare jurisdiction, insurance coverage to their constituents and telemedicine remuneration plans, it is possible for diverse regulatory changes to occur frequently.

When putting together a health and wellness business, consider all the legal risks that go into the model. Sometimes these are obvious; and sometimes subtle.

 

Laws governing telemedicine constantly keep changing.

 

Get a legal review of your business model before you open your doors, whether those doors are made of steel or silicon.

Cohen Healthcare Law Group

The reader is strongly encouraged to seek appropriate legal counsel to discuss global telemedicine as a viable career choice, if applicable.

References
McCracken, G. (2015). How Does Telemedicine Affect Malpractice Insurance? Evisit.com. https://blog.evisit.com/virtual-care-blog/telemedicine-affect-malpractice-insurance

Medical Malpractice Insurance. (2020). Naic.org. https://content.naic.org/cipr_topics/topic_medical_malpractice_insurance.htm#:~:text=Issue%3A%20Medical%20professional%20liability%20insurance,practices%20resulting%20in%20bodily%20injury%2C

Risk Matters: Telemedicine | SVMIC. (2021). SVMIC. https://home.svmic.com/resources/newsletters/257/risk-matters-telemedicine

‌Telemedicine Malpractice Insurance | Insurance Center of North Jersey | Maywood, NJ. (2021, April). Insurance Center of North Jersey | Maywood, NJ. https://www.icnj.com/telemedicine-malpractice-insurance/

‌Telemedicine Malpractice Insurance. (2020, May 11). CM&F Group. https://www.cmfgroup.com/telemedicine-malpractice-insurance-coverage/

‌The 7 Best Malpractice Insurance Companies of 2021. (2021). Investopedia. https://www.investopedia.com/best-malpractice-insurance-5025092

‌The Cost of Medical Malpractice Insurance is Rising: Be Prepared. (2019, November 4). EQuoteMD. https://equotemd.com/blog/the-cost-of-medical-malpractice-insurance-is-rising-be-prepared/
Wolstenholm, J. (2019, January 2). ProAssurance: 2021 Medical Malpractice Insurance Review | LeverageRx. LeverageRx Blog; LeverageRx Blog. https://www.leveragerx.com/blog/proassurance-group-malpractice-insurance-review/

Ismail Sayeed CEO Medical Director ViOS, Inc.

BLOG AUTHOR

Dr. Ismail Sayeed

Dr. Sayeed is the Medical Director of ViOS, Inc. He is a deeply committed physician entrepreneur & medical blog writer. While building the global infrastructure of the VIOS Clinic, he is dedicated to educate people on the potential of specialist telemedicine for managing chronic diseases.

Read more about him in his author bio

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