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Medical Malpractice and Liability

Medical malpractice is a deviation from the accepted standards of practice in the medical community and causes injury or death to a patient for whom the physician has a duty of care. Medical liability is generally governed by State law. Standards and regulations for medical malpractice vary by State. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

Many insurance carriers cover providers while they are delivering services via telehealth. The Physician Insurers Association of America (PIAA) surveyed its member companies in 2010 and found that 18 of 19 of its members that responded to their survey have a provision to provide malpractice coverage for telehealth, although the companies did retain the right to selectively deny coverage.  Thirteen out of 18 companies surveyed have taken advantage of this right.  Out of the 18 companies surveyed by PIAA, five had at least one lawsuit related to telehealth pending and they were all related to radiology cases.  The allegations focus on a failure to diagnose properly.  For example, an incident of a misread film from a nursing home, misread image on home computer, improper interpretation of image or the provider not reporting to the malpractice company that s/he was practicing teleradiology in a distant site.

Ensuring You Are Covered

It is important to check with your malpractice insurance provider to see if there are any requirements or limitations to the provision of telehealth services under the insurance policy.  For example, a company may provide coverage for telehealth, but require the provider to submit a questionnaire regarding the location, frequency and type of service provided via telehealth; be licensed in the state receiving services and/or seek written approval from the liability insurance company before they begin practicing telehealth. Of the 18 companies surveyed by PIAA with telehealth coverage, five retain the right to place a surcharge on provider’s premium.  The surcharge varies based on risk, venue, whether the physician is providing services to a state without damage caps, and whether the service increases physician exposure. 

Malpractice Coverage Across State Lines

Some liability insurance plans only cover telehealth when it is within the State in which the provider practices and is licensed, but not outside the state leaving providers open to uninsured claims against them if they use telemedicine to connect with patients in other states. Some states may have legal environments that may make your carrier hesitant to extend your malpractice coverage to services provided within those borders.

When a provider performs a consultation to another state, he/she is exposing him/herself to the jurisdiction and venue of the patient.  Therefore, providers must understand their legal obligations under that state’s laws, and that they could be potentially called into court there for a malpractice claim.

 Prior to providing telemedicine services, physicians should obtain written assurances from their insurer that medical malpractice liability insurance policies cover telemedicine malpractice. Additionally, if the physician will be providing services across state lines, they must ensure that their malpractice liability extends coverage to multiple states. 

To find out if you are covered under your malpractice insurance, check with your insurance company to find out if they cover telehealth, if there are any restrictions or requirements to be aware of and whether or not their malpractice liability extends coverage to multiple states.  

Additional Resources

Chesanow, Neil.  Do Virtual Patient Visits Increase Your Risk of Being Sued? Medscape. Oct. 22, 2014.