Telemedicine: Insurance & Liability Issues
An Industry Report
By Rodric Hurdle-Bradford
The onset of COVID-19 dramatically ushered in a new chapter of healthcare delivery led by telemedicine, the extreme outlier of healthcare delivery prior to the pandemic has now become the standard or status quo for both regional and national healthcare providers.
“Consumers embraced telemedicine during the pandemic, and have come to expect it as a convenient healthcare delivery option,” said Judy Klein, risk management manager at Coverys, a medical malpractice insurance provider. “As telemedicine becomes more prevalent, so too does the risk of liability.”
Klein continued, “Missing critical information, like a subtle wheeze while the patient breathes, a slight hand tremor, an unsteady gait while entering the exam room, may result in adverse outcomes for patients that can lead to lawsuits for claims like those expected for in-person care, such as incorrect diagnosis, inadequate assessment, testing, or procedures, and failure to ensure that the patient understood the diagnosis, recommended treatment or need for follow-up.”
Further supporting the notion of increasing speed in the delivery of telemedicine services, ProAssurance recently presented its Telemedicine and Professional Liability series where the company stated that, “The legal standards and the legal community are trying to keep up with [telemedicine].”
Telemedicine is changing medicine from a timing standpoint, but also from a geographical location standpoint, and there are still several areas where the legal world is a couple steps behind where the medical community is in the area of telemedicine.
“Coverys has not seen many telemedicine-related claims,” Klein said. “This is expected to change as the utilization of telemedicine increases. We are watching this closely.”
What is Telemedicine?
“The problem is that everyone has their own definition of what telemedicine is,” said ProAssurance Vice President and Managing Director of Custom Physicians Patrick O’ Doherty said during the series. “States sometimes define these terms and sometimes they do not, and navigating through all that really creates areas of difficulty.”
The widely accepted definition of telemedicine is the delivery of healthcare at a distance, a term which is often used interchangeably with telehealth, which is the delivery of health-related education using technology.
Telemedicine can include the use of phone apps to download patient information, using interactive video features, image delivery via email, at-home reporting tools and phone appointments to substitute for the in-person patient experience. Some specialties like radiologists have always been based on providing healthcare from a distance and were better prepared for the sudden shift to telemedicine as a foundation for healthcare delivery.
“Generally, low acuity cases result in lower exposure regardless of whether the visit was in-person or virtual,” said ISMIE Health spokesperson John Maszinski. “However, in rural areas there are some higher risk telehealth consultation services that are provided because there are just no specialists in certain geographic areas.”
Coverage, Communication & Compliance
“The rules and regulations are everything with telemedicine, if you do not know them you can run into some serious problems,” said O’ Doherty. “It begins with understanding your coverage. If you are a physician practicing in a group and not a principal, you may not be prepared and not be aware of these pitfalls as you enter the telemedicine world, and you do not have the coverage that goes along with you.”
Communication is key for both doctor’s offices and the insurance company.
What needs to be communicated between doctors and professional liability insurance providers at the beginning of every new policy and at each policy renewal:
● Confirm states of practice
● Confirm all procedures and processes used via telemedicine
● Confirm pricing
● Identify what, if any, telemedicine and telehealth services that are not covered through the plan
● Review the current technology platforms of the practice
● Any and all restrictions
One common issue for telemedicine providers occurs when multiple providers care for a patient that files a malpractice claim, but all providers have different telemedicine coverage, making it impossible for a joint defense against the claim. This leads to a direct ‘us versus them’ standoff as blame is passed between each of the providers and the telemedicine organization. The lack of coordinated coverage has to be a major concert for all providers of telemedicine, as well as for the telemedicine organizations.
State-by-State Strategy
The foundation in operating a successful telemedicine practice while minimizing risk is as simple as a junior high school geography test–know your states.
“Different states have different rules and regulations regarding the delivery of telemedicine, which can make it difficult for providers to offer services across state lines,” said Klein. “Many special exceptions made during the pandemic through waivers are now expiring. The licensure requirements of multiple states may be needed and state law may also dictate whether physician assistants and nurse practitioners can practice telemedicine across state lines.”
What is considered telemedicine, telehealth and everything in between varies state-by-state, and in-depth research, outreach and strategy is needed to stay in full compliance and out of the courtroom. Doctors need to make sure that their telemedicine professional liability insurance covers each state that they are providing services for patients, and that the liability insurance carrier has a representative that has a high level of expertise in each state’s laws, legislation and regulations.
“Along with state licensing requirements, some states have specific laws that govern the use of telemedicine,” said Klein. “Some states require that patients have an established relationship with a physician before receiving care via telemedicine. Some states also have laws that govern how telemedicine services may be billed and what type of insurance coverage is required.”
With 2022 being a mid-term year and heavy turnover expected in many state legislatures, this attention to detail is not a luxury–it is a requirement.
When providing healthcare care across state lines physicians and their administrative and legal staff have to know in detail each state’s laws and regulations in providing care, technology, effects of technology downtime and continuity of care. Offices should also emphasize the importance of documenting exactly when the patient relationship begins with the doctor.
Along with different state regulations, telemedicine providers have to be cognisant of operating in states that have patient compensation funds specifically for malpractice suits. Currently the states that have the largest patient compensation funds are: Connecticut, Indiana, Kansas Louisiana, Nebraska, New Mexico, Pennsylvania, Virginia and Wisconsin.
If you are operating in any of these states make sure your telemedicine professional liability insurance provider has an expert available to talk to you at a moment’s notice for clarification of current laws and updates to new legislation and regulation regarding the state’s patient compensation fund.
“As telemedicine becomes more common, it is vital for providers to be aware of the laws in their state to ensure that they are providing care in compliance with the law,” said Klein. “Consultation with an attorney is essential.”
Adopting Best Practices
The best practices in observing coverage, compliance and communication for telemedicine are still being developed, but many have already proven their worth in the fast-changing industry. All medical practices should be constantly searching for professional development opportunities about telemedicine, as well as conventions, conferences and webinars to learn more about local laws and industry best practices.
Best practices in telemedicine include:
● Creating a process to know when an in-person appointment or exam is needed
● Make sure cyber liability insurance is high-quality and up-to-date
● Develop standard statistics to show efficiency using telemedicine services
● Observing all state regulations, get documented clarity and responses on ambiguous laws and regulations
● Know if you are operating in a state with a patient compensation fund
“Since telemedicine is new, we are still learning a lot about the pitfalls of the technology and its techniques,” said ProAssurance Regional Vice President Gina Harris, during the company’s Telemedicine and Professional Liability series. “Consider the technology being used and closely evaluate the safeguards of technology to minimize risk and maximize operational efficiency while providing the best care possible to your patients.”
