In our previous article, we discussed some of the legal and ethical issues concerning Telemedicine. In this article we will discuss some of the potential liability risks that may arise for doctors and other healthcare professionals when involved with Telemedicine. We will make some suggestions concerning practical steps that can be taken to contain risks and matters to be aware of when organizing medical professional liability (MPL) insurance. The focus in this article will be upon international Telemedicine, that is, Telemedicine transactions that cross the boundaries of different countries. In a Thai context this could include doctors in Thailand providing healthcare services by Telemedicine to patients situated in neighbouring countries, a not uncommon situation given Thailand’s comparatively advanced healthcare infrastructure.
Telemedicine can be an invaluable tool that overcomes problems of accessibility. It can also be used for other purposes, for example, to take advantage of different time zones. One example we know of is a collaboration between radiologists in Sweden and Australia, referring images to one another for rapid assessment during each country’s different working hours.
Providers of health care services in international contexts need to ensure that they have an adequate appreciation of potential risks and take prudent steps to manage these risks. In our prior article we emphasized the importance of providers ensuring that there is due compliance with licensing and accreditation requirements at both ends of a international Telemedicine transaction. This will be particularly so when there is a direct patient/provider relationship with the patient residing in a different country from the provider.
The Need for MPL Insurance
Providers should ensure that they have adequate and effective professional indemnity insurance. Compliance with licensing requirements is especially important when it comes to MPL insurance. It is not uncommon for insurers to exclude cover if medical treatment is rendered by a provider who is not duly licensed to provide that treatment in the jurisdiction where the service occurs. Conceivably there may even be issues of criminality involved in those jurisdictions which make it a criminal offence to practice medicine without appropriate licensing.
Thus providers need to be constantly aware of the risk that in providing a health care service by Telemedicine they may inadvertently be involving themselves in a violation of another country’s healthcare laws and policies. Providers need to ensure that they fully understand and comply with the registration and licensing laws of any and all countries where they are providing Telemedicine services and that they are properly covered by their MPL insurance.
In some jurisdictions this problem has been alleviated by mutual recognition arrangements. For example, in the EU a physician duly registered in his/her home state can provide virtual care services to patients in another member state even if that physician is not registered in the member state in which the patient is located. In the case of Australia and New Zealand there is mutual recognition permitting physicians to practice in each jurisdiction.
We will now move on to discuss MPL insurance in a little more detail.
Types of MPL Insurance
There are two types of MPL insurance with two different types of cover. One of these is “occurrence” cover, the other “claims made” cover. It is important to have a full appreciation of the differences between these two types of cover and the timing differences between the two. Claims made cover is now the most common form of MPL insurance available. Occurrence cover is increasingly difficult to obtain although some insurers may still offer both but with occurrence cover limited to a few stipulated specialities. All of this can cause confusion. Insurers may use the composite expression “professional indemnity” in respect to both types of cover when in reality they cover different things and operate in different ways.
Occurrence Cover
Under occurrence cover the insured will be protected from any covered incident which actually occurs during the policy period regardless of when a claim in relation to that incident arises. An occurrence policy will respond to a claim even after the policy in question has expired so long as the covered incident occurred during a period in which the policy was in force. Occurrence cover can provide what in effect is enduring cover for incidents that occurred during a policy period.
Claims Made Cover
Under claims made cover the insured will be covered for claims arising and notified to the insurer during the policy period. If a retroactive date is applicable the alleged incident giving rise to the claim must have taken place on or after that retroactive date. Depending upon any applicable retroactive date this may mean a claim made under a current policy might provide cover in respect to claims arising out of services performed in prior years. Once a policy expires cover also expires unless the policy is renewed. This is the situation even if a claim is subsequently made that relates back to an incident that occurred whilst the policy was in effect.
Conclusion
From this brief discussion it will be apparent issues arising for consideration in relation to MPL insurance can raise complex questions. It may well be desirable to seek expert advice from suitably qualified insurance brokers or other professionals. Particular care will be required when contemplating a change of insurer or a move from occurrence cover to claims made cover.
To date, and in spite of some dire predictions to the contrary, it appears the overall incidence of medical malpractice claims arising out of the use of Telemedicine has not markedly increased. Whether this remains the case in the future remains to be seen. Some are predicting an increase in malpractice allegations concerning the use of Telemedicine, especially in the context of high severity cases with a higher incidence of negative patient outcomes, such as cardiovascular, oncology and chronic disease management.
*The original article was published in The Bangkok Post on 2 October 2017.