As more people were staying at home during the Covid-19 pandemic, there was a surge in people accessing telemedicine and the number of telemedicine appointments increased by 50% during the first quarter of 2020. Despite life returning to normality, this trend doesn’t seem to have dropped off. Using technology is a faster and often cheaper way of providing healthcare, meaning that patients are receiving healthcare sooner and more efficiently. Whilst the recent surge in popularity can undeniably be attributed to the urgency of accessing healthcare remotely during the pandemic, the increasing demand for telemedicine services is actually a long-term trend, and one set to remain and grow. New NHS guidance instructing family GPs to embed a system of ‘total triage’, meaning that anyone seeking to see their doctor must first have a discussion online or by telephone, was formalised into annual NHS operational planning guidance.
Millennials are choosing virtual access to healthcare over physical appointments, with the group electing to see healthcare professionals in person up to 30% less than baby boomers (opens a new window). It is no surprise that young people prefer online appointments for their healthcare needs: the versatility and accessibility of telemedicine services – telephone triaging, video consultations, mobile apps, messaging platforms – make it a desirable option for those who have grown up in the digital age. By necessity, telemedicine has also increased in popularity amongst a broader audience during the time where we were to stay home.
But with new virtual ways to access healthcare comes new risks.
Failures in telemedicine can give rise to medical malpractice claims that healthcare providers are all too familiar with, as well as new technology liability and cyber risks. System outages, products failing to perform, technology errors and omissions and generally poor infrastructure are only of a few challenges faced by those providing digital health. Deletion of crucial information relating to a symptom, or the quality of an image submitted can result in a misdiagnosis and potential large liability losses.
Rapport and communication
As you may have discovered during the pandemic, establishing a relationship virtually is a more arduous task. Alongside technical errors, remote consulting can increase the risk of poor patient-doctor rapport. It is less easy to make eye contact, body language becomes obscured, small talk tends to dry up, there can be a tendency to curtail the call and words can be slightly muffled. Lack of communication is a common cause of complaints in physical appointments let alone virtual ones. As appointments are virtualised and long-standing patient-doctor connection decreases, it is likely that communication-related complaints and indeed misinterpretation and even misdiagnosis will increase.
If you are a healthcare provider offering telemedicine services, we urge that you adhere to the following recommendations to mitigate medical malpractice claims arising out of telemedicine provision:
Ensure that both you and the patient have access to appropriate technology that will allow you to communicate efficiently and for the patient to be adequately examined (where possible)
Remember the importance of good communication
Pay particular attention to the body language of the patient if you are consulting via video
If you intuit that you should see the patient directly then do so
Do not try to make complex diagnoses without seeing the patient in person
Comprehensively document the appointment in the clinical notes; some of you will incorporate the recording itself or a transcription of the recording within the patient record
Document informed consent in the absence of physical signatures
Document any technical difficulties e.g. connectivity/signal problems
The importance of adequate insurance
We know that healthcare providers are unlikely to have the infrastructure to create their own telemedicine platforms and so will likely outsource to a third party. Companies that can offer telemedicine services to healthcare providers are fundamentally technology companies. This means that both the technology companies and the healthcare providers offering telemedicine services are exposed to medical malpractice, as well as cyber risks, and appropriate insurance should be purchased accordingly.
Healthcare providers have a legal obligation to protect confidential medical information in every circumstance. Cyber insurance policies are crucial in protecting a business from digital threats; human error can lead to the distribution of confidential data, computer systems can be hacked and sensitive data stolen. Cyber attackers can then demand payment in exchange for the return of data (known as ransomware attacks). Healthcare providers must make every effort to protect patient privacy and be particularly vigilant of these cyber risks when handling confidential medical data. With cyber insurers commonly excluding all forms of bodily injury, it is all the more important that providers of digital health approach their broker to ensure that all areas of their business are appropriately insured.
As expected, the double exposure of medical malpractice and cyber can result in incredibly expensive litigation. Breaches of data can have huge financial and reputational ramifications, including investigations and fines imposed by the ICO. In an attempt to reduce your cyber risk, we recommend that you follow the telemedicine best practise suggestions below:
Verify third-party suppliers of platforms
Encrypt sensitive data
Utilise secure logins and use strong passwords
Make regular investigations into new risks
Implement effective staff training
Seek broker input on the most appropriate cyber policy for you
If you are a healthcare provider considering introducing telemedicine services, always liaise with your broker to ensure that appropriate cover is provided, in particular establishing whether it will respond to medical malpractice claims arising out of telemedicine exposures. Healthcare providers considering offering telemedicine services must be wary of trying to independently source individual medical malpractice and cyber policies as gaps in cover may leave them exposed. We therefore urge corporations providing this service to contact us. We have expertise in placing telemedicine cover and a wide range of clients in this sector. We can aid in ensuring that gaps in cover are plugged whilst the insurance market adapts to this emerging risk and specialist policies are subsequently designed. Moreover, in the unfortunate event of a complaint or claim relating to the provision of remote services, Lockton’s dedicated healthcare risk management and claims team can offer step by step, empathetic and straightforward advice to guide you through the process, making it a far less arduous experience.
For more information, please contact:
Head of Advocacy and Risk Management, Senior Vice President - Healthcare
T: +44 (0)20 7933 2516
M: +44 (0)77 7542 9377