Professional Liability Risk Considerations in Telemedicine

Hoppy Stauffer

Senior VP - Healthcare

Jordan Connelly

Senior VP / Branch Manager

Eric Sawyer

Senior VP - Healthcare

June 1, 2021

As virtual healthcare becomes the norm, special legal considerations are growing for medical professionals who are treating patients. In less than 12 months, the pandemic fast-tracked nearly 10 years of telemedicine technology. In 2020, experts estimate that because of COVID-19, telemedicine use was up more than 6000%. Today, 42% of Americans reported using video visits during the pandemic, a trend that isn’t showing any signs of slowing down.

Here’s what your healthcare industry clients need to know regarding the increased use of telemedicine and professional liability risks.

Medical Professional Liability (MPL) Risks
A primary liability exposure for nearly all healthcare providers involving telemedicine is the increased risk for malpractice. The fact is, remote provider-patient communications invite miscommunication issues and an increased chance for a professional liability exposure. Falling under the MPL risk category is the inability for providers to physically touch their patients.

According to Medscape, communications via video make it difficult for a medical professional to get a full sense of how ill a patient is and what else might be going on in addition to what the patient is telling them. According to analysis by The Doctors Company and as reported in Medscape, 71% of telemedicine-related claim allegations involved diagnostic errors.

Failure to Comply with State Laws
According to the American Bar Association, one of the more challenging issues for remote health professionals is ensuring compliance with each individual state’s licensing rules. For example, a physician must be licensed in the state in which he or she physically practices, but that licensure does not necessarily permit the physician to remotely provide or direct patient care if the patient is in another state.

Unfortunately, not all healthcare providers have the ability to confirm patient location by way of data provided by the mobile device used by patients. This can make it difficult to ensure that a patient is treated by an appropriately licensed professional in the state where the patient is located at the time the telehealth services are provided.

In addition to these types of growing compliance-related lawsuits being brought against healthcare providers themselves, the industry is also seeing cases being brought against telehealth operations and associated entities.

Lack of or Improper Informed Consent
Another key risk factor contributing to legal allegations involving telemedicine is providers not informing or improperly informing patients in advance about the risks of telemedicine. If after a telemedicine visit a patient’s condition worsens, he or she may have a legal basis for filing a lawsuit against the medical provider. According to Medscape, a poorly executed, inadequate and/or incomplete informed consent can result in a claim for medical battery. 

Filing a Lawsuit
Grounds for a telemedicine lawsuit include many of the same principles for any other type of medical malpractice lawsuit, in that a patient must prove that:

  • A doctor-patient relationship existed.
  • That the doctor provided substandard care that resulted in injury or illness.
  • That the injury caused by the doctor inflicted monetary, physical or emotional damage.

As the insurance industry catches up with pandemic-related issues and more patients opt for treatment via telemedicine, we could see even more potential professional liability issues develop over the next several months involving medical malpractice, potential misdiagnosis, and errors & omissions.

From medical malpractice to home health to clinics and rehabilitation and managed care facilities, we offer insurance solutions for a wide range of healthcare industry risk classes. We work with top-rated carriers to help you create a customized coverage program for your business clients.

For more information, contact your Amwins/Worldwide broker or underwriter, or reach out to one of the following specialists:

Hoppy Stauffer
Senior Vice President – Healthcare
(213) 236-4574 |

Jordan Connelly
Senior Vice President – Branch Manager
(678) 502-1260 |

Eric Sawyer
Senior Vice President – Healthcare
(206) 538-5082 |

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