Sponsored: Liberty Mutual Insurance

Modernizing Healthcare by Embracing Telemedicine

Telemedicine may be the healthcare delivery model of the future, but in exchange for convenience and efficiency, patients and providers could sacrifice quality of care.
By: | October 3, 2017

Today, we can request a ride, order groceries, and stream a television show with just a simple click. And increasingly, we can also access healthcare. According to the American Telemedicine Association, more than 20 million Americans will have access to a remote healthcare service by the end of 2017.

Whether receiving or administering care, telemedicine can have advantages. For patients, telemedicine offers convenience and speed, and for healthcare providers, it allows medical professionals to see more patients.

With these advantages come new challenges, such as technical requirements, compliance, and licensing of personnel. By taking a holistic, cross-team approach to implementation and working closely with their insurance partners, healthcare providers can successfully embrace telemedicine and also protect patients, medical professionals, and their own operations from the potential downsides.

A New Model to Meet Patient Needs

A variety of factors drive the need for telemedicine. Many people live in areas where getting to a healthcare facility is challenging, or where there’s a shortage of physicians and specialists. And, those who benefit most is also growing: the number of elderly Americans has increased from 35 million to 49 million1 in the past 16 years. This group typically needs more care, but often has difficulty getting to a doctor’s office.

“Many senior care facilities are using videoconferencing to access telemedicine. Physicians see the senior citizens at the facility, diagnose ailments, and prescribe treatments remotely,” said Kristin McMahon, President, U.S. Liability and Regulatory Healthcare Products, IronHealth.

Cutting out the need for transportation means faster care for patients, which could also translate to fewer hospital readmissions.

“Faster diagnosis and treatment could translate into fewer professional liability claims. For example, you could more quickly address pressure sore ulcers or recommend appropriate fall precautions to minimize the risk of resident bodily injuries,” said Jeff Duncan, Chief Underwriting Officer, Healthcare Practice, Liberty Mutual Insurance.

Healthcare providers can also potentially see more patients in a day by addressing more minor ailments through videoconferencing or telephonic methods.

“Organizing the logistics of face-to-face consultations with multiple patients takes time,” Duncan said. “By addressing less serious cases using telemedicine, doctors have more time to analyze and treat complex cases.”

But significant clinical and technical risks go hand-in-hand with these benefits.

Risks to Telemedicine Providers

“Healthcare can’t be treated like any other consumer product; it’s much more complicated than requesting a ride to the airport,” Duncan said. In exchange for convenience and efficiency, patients and providers may sacrifice quality of care.

Without in-person interactions with patients, medical professionals may run the risk of misdiagnosis, which can cause physical harm to the patient and professional liability to the healthcare provider.

Traditional malpractice policies cover the medical professional for an error in judgment or treatment that fails to meet the standard of care. Technology introduces another layer of uncertainty.

“If the clinician fails to diagnose an abnormality on a CT scan, is it due to his or her professional error, or did the technology contribute to the oversight?” McMahon asked. “Perhaps the internet connection was weak or the image quality wasn’t high enough, which resulted in the clinician missing an area of shading that could suggest cancer, for example.”

There have not been many claims stemming from this type of technology failure, but McMahon and Duncan are keeping a close eye on this potential issue as telemedicine grows more prevalent.

Delivering healthcare online also increases cyber and privacy exposures that could land providers on the wrong side of HIPAA compliance. Electronic records shared with third-party telemedicine technology platforms may be at greater risk.

Licensure issues also arise when state lines can be so easily crossed in the cloud. Medical professionals must be properly licensed in the states where they provide care, but using telemedicine means that a patient’s location could be anywhere. Telemedicine regulations can vary by state in areas such as informed consent, standard of care, credentialing of providers, and remote prescription practices.

A Cross-Functional Approach to Mitigate Risk

Telemedicine may be the healthcare delivery model of the future, but providers should implement it strategically, with the help of a cross-disciplinary team.

“Billing and finance team members should be involved to determine how telemedicine-related reimbursements will work. Currently, 29 states and D.C. mandate reimbursement for some telemedicine services, but amounts vary,” Duncan said.

Clinical input is necessary to determine what staff will use it for which types of injury, and what patient population it might serve. The IT group should discuss the cyber and information privacy exposure, as well as the technical aspects of implementation. Legal and compliance teams can weigh in on contractual, jurisdictional, and licensure issues.

The full team needs to monitor the quality of care—is it the same or better than before?

“No one discipline has enough perspective to solve these challenges effectively in isolation. You need to engage cross-functional teams early, and then think about where telemedicine can be effective,” Duncan said.

Manage Liability Holistically

Insurance is the final piece of the puzzle.

Organizations should work with insurers and brokers to make sure current policies will meet their needs. Cyber and professional liability limits may need to be increased. Technology partners should also have the appropriate cyber and E&O coverage.

In particular, professional liability policies should respond to both the traditional exposure of a physician making a medical error, as well as exposures introduced by the telemedicine technology itself.

“If the technology malfunctions and that leads to a misdiagnosis or bodily injury, the healthcare provider can still be held liable on a negligent credentialing theory,” McMahon said.

One solution is to have the medical malpractice exposure and the technology E&O coverage from the same insurer, to avoid potential conflicts if there is a liability claim implicating both parties. Said McMahon, “We are looking very closely toward developing an integrated product to provide a comprehensive solution.”

Notes Duncan, “Telemedicine is here to stay, and we want to help protect our healthcare clients as they embrace it.”

To learn more, visit https://business.libertymutualgroup.com/business-insurance/industries/health-care-providers-insurance-coverage.

 1 United States Census Bureau. https://census.gov/newsroom/press-releases/2017/cb17-100.html

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty Mutual Insurance. The editorial staff of Risk & Insurance had no role in its preparation.






Liberty Mutual Insurance offers a wide range of insurance products and services, including general liability, property, commercial automobile, excess casualty and workers compensation.

More from Risk & Insurance

More from Risk & Insurance

Risk Scenario

The Betrayal of Elizabeth

In this Risk Scenario, Risk & Insurance explores what might happen in the event a telemedicine or similar home health visit violates a patient's privacy. What consequences await when a young girl's tele visit goes viral?
By: | October 12, 2020
Risk Scenarios are created by Risk & Insurance editors along with leading industry partners. The hypothetical, yet realistic stories, showcase emerging risks that can result in significant losses if not properly addressed.

Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.

PART ONE: CRACKS IN THE FOUNDATION

Elizabeth Cunningham seemingly had it all. The daughter of two well-established professionals — her father was a personal injury attorney, her mother, also an attorney, had her own estate planning practice — she grew up in a house in Maryland horse country with lots of love and the financial security that can iron out at least some of life’s problems.

Tall, good-looking and talented, Elizabeth was moving through her junior year at the University of Pennsylvania in seemingly good order; check that, very good order, by all appearances.

Her pre-med grades were outstanding. Despite the heavy load of her course work, she’d even managed to place in the Penn Relays in the mile, in the spring of her sophomore season, in May of 2019.

But the winter of 2019/2020 brought challenges, challenges that festered below the surface, known only to her and a couple of close friends.

First came betrayal at the hands of her boyfriend, Tom, right around Thanksgiving. She saw a message pop up on his phone from Rebecca, a young woman she thought was their friend. As it turned out, Rebecca and Tom had been intimate together, and both seemed game to do it again.

Reeling, her holiday mood shattered and her relationship with Tom fractured, Elizabeth was beset by deep feelings of anxiety. As the winter gray became more dense and forbidding, the anxiety grew.

Fed up, she broke up with Tom just after Christmas. What looked like a promising start to 2020 now didn’t feel as joyous.

Right around the end of the year, she plucked a copy of her father’s New York Times from the table in his study. A budding physician, her eyes were drawn to a piece about an outbreak of a highly contagious virus in Wuhan, China.

“Sounds dreadful,” she said to herself.

Within three months, anxiety gnawed at Elizabeth daily as she sat cloistered in her family’s house in Bel Air, Maryland.

It didn’t help matters that her brother, Billy, a high school senior and a constant thorn in her side, was cloistered with her.

She felt like she was suffocating.

One night in early May, feeling shutdown and unable to bring herself to tell her parents about her true condition, Elizabeth reached out to her family physician for help.

Dr. Johnson had been Elizabeth’s doctor for a number of years and, being from a small town, Elizabeth had grown up and gone to school with Dr. Johnson’s son Evan. In fact, back in high school, Evan had asked Elizabeth out once. Not interested, Elizabeth had declined Evan’s advances and did not give this a second thought.

Dr. Johnson’s practice had recently been acquired by a Virginia-based hospital system, Medwell, so when Elizabeth called the office, she was first patched through to Medwell’s receptionist/scheduling service. Within 30 minutes, an online Telehealth consult had been arranged for her to speak directly with Dr. Johnson.

Due to the pandemic, Dr. Johnson called from the office in her home. The doctor was kind. She was practiced.

“So can you tell me what’s going on?” she said.

Elizabeth took a deep breath. She tried to fight what was happening. But she could not. Tears started streaming down her face.

“It’s just… It’s just…” she managed to stammer.

The doctor waited patiently. “It’s okay,” she said. “Just take your time.”

Elizabeth took a deep breath. “It’s like I can’t manage my own mind anymore. It’s nonstop. It won’t turn off…”

More tears streamed down her face.

Patiently, with compassion, the doctor walked Elizabeth through what she might be experiencing. The doctor recommended a follow-up with Medwell’s psychology department.

“Okay,” Elizabeth said, some semblance of relief passing through her.

Unbeknownst to Dr. Johnson, her office door had not been completely closed. During the telehealth call, Evan stopped by his mother’s office to ask her a question. Before knocking he overheard Elizabeth talking and decided to listen in.

PART TWO: BETRAYAL

As Elizabeth was finding the courage to open up to Dr. Johnson about her psychological condition, Evan was recording her with his smartphone through a crack in the doorway.

Spurred by who knows what — his attraction to her, his irritation at being rejected, the idleness of the COVID quarantine — it really didn’t matter. Evan posted his recording of Elizabeth to his Instagram feed.

#CantManageMyMind, #CrazyGirl, #HelpMeDoctorImBeautiful is just some of what followed.

Elizabeth and Evan were both well-liked and very well connected on social media. The posts, shares and reactions that followed Evan’s digital betrayal numbered in the hundreds. Each one of them a knife into the already troubled soul of Elizabeth Cunningham.

By noon of the following day, her well-connected father unleashed the dogs of war.

Rand Davis, the risk manager for the Medwell Health System, a 15-hospital health care company based in Alexandria, Virginia was just finishing lunch when he got a call from the company’s general counsel, Emily Vittorio.

“Yes?” Rand said. He and Emily were accustomed to being quick and blunt with each other. They didn’t have time for much else.

“I just picked up a notice of intent to sue from a personal injury attorney in Bel Air, Maryland. It seems his daughter was in a teleconference with one of our docs. She was experiencing anxiety, the daughter that is. The doctor’s son recorded the call and posted it to social media.”

“Great. Thanks, kid,” Rand said.

“His attorneys want to initiate a discovery dialogue on Monday,” Emily said.

It was Thursday. Rand’s dreams of slipping onto his fishing boat over the weekend evaporated, just like that. He closed his eyes and tilted his face up to the heavens.

Wasn’t it enough that he and the other members of the C-suite fought tooth and nail to keep thousands of people safe and treat them during the COVID-crisis?

He’d watched the explosion in the use of telemedicine with a mixture of awe and alarm. On the one hand, they were saving lives. On the other hand, they were opening themselves to exposures under the Health Insurance Portability and Accountability Act. He just knew it.

He and his colleagues tried to do the right thing. But what they were doing, overwhelmed as they were, was simply not enough.

PART THREE: FALLING DOMINOES

Within the space of two weeks, the torture suffered by Elizabeth Cunningham grew into a class action against Medwell.

In addition to the violation of her privacy, the investigation by Mr. Cunningham’s attorneys revealed the following:

Medwell’s telemedicine component, as needed and well-intended as it was, lacked a viable informed consent protocol.

The consultation with Elizabeth, and as it turned out, hundreds of additional patients in Maryland, Pennsylvania and West Virginia, violated telemedicine regulations in all three states.

Numerous practitioners in the system took part in teleconferences with patients in states in which they were not credentialed to provide that service.

Even if Evan hadn’t cracked open Dr. Johnson’s door and surreptitiously recorded her conversation with Elizabeth, the Medwell telehealth system was found to be insecure — yet another violation of HIPAA.

The amount sought in the class action was $100 million. In an era of social inflation, with jury awards that were once unthinkable becoming commonplace, Medwell was standing squarely in the crosshairs of a liability jury decision that was going to devour entire towers of its insurance program.

Adding another layer of certain pain to the equation was that the case would be heard in Baltimore, a jurisdiction where plaintiffs’ attorneys tended to dance out of courtrooms with millions in their pockets.

That fall, Rand sat with his broker on a call with a specialty insurer, talking about renewals of the group’s general liability, cyber and professional liability programs.

“Yeah, we were kind of hoping to keep the increases on all three at less than 25%,” the broker said breezily.

There was a long silence from the underwriters at the other end of the phone.

“To be honest, we’re borderline about being able to offer you any cover at all,” one of the lead underwriters said.

Rand just sat silently and waited for another shoe to drop.

“Well, what can you do?” the broker said, with hope draining from his voice.

The conversation that followed would propel Rand and his broker on the difficult, next to impossible path of trying to find coverage, with general liability underwriters in full retreat, professional liability underwriters looking for double digit increases and cyber underwriters asking very pointed questions about the health system’s risk management.

Elizabeth, a strong young woman with a good support network, would eventually recover from the damage done to her.

Medwell’s relationships with the insurance markets looked like it almost never would. &

Bar-Lessons-Learned---Partner's-Content-V1b

Risk & Insurance® partnered with Allied World to produce this scenario. Below are Allied World’s recommendations on how to prevent the losses presented in the scenario. This perspective is not an editorial opinion of Risk & Insurance.®.

The use of telehealth has exponentially accelerated with the advent of COVID-19. Few health care providers were prepared for this shift. Health care organizations should confirm that Telehealth coverage is included in their Medical Professional, General Liability and Cyber policies, and to what extent. Concerns around Telehealth focus on HIPAA compliance and the internal policies in place to meet the federal and state standards and best practices for privacy and quality care. As states open businesses and the crisis abates, will pre-COVID-19 telehealth policies and regulations once again be enforced?

Risk Management Considerations:

The same ethical and standard of care issues around caring for patients face-to-face in an office apply in telehealth settings:

  • maintain a strong patient-physician relationship;
  • protect patient privacy; and
  • seek the best possible outcome.

Telehealth can create challenges around “informed consent.” It is critical to inform patients of the potential benefits and risks of telehealth (including privacy and security), ensure the use of HIPAA compliant platforms and make sure there is a good level of understanding of the scope of telehealth. Providers must be aware of the regulatory and licensure requirements in the state where the patient is located, as well as those of the state in which they are licensed.

A professional and private environment should be maintained for patient privacy and confidentiality. Best practices must be in place and followed. Medical professionals who engage in telehealth should be fully trained in operating the technology. Patients must also be instructed in its use and provided instructions on what to do if there are technical difficulties.

This case study is for illustrative purposes only and is not intended to be a summary of, and does not in any way vary, the actual coverage available to a policyholder under any insurance policy. Actual coverage for specific claims will be determined by the actual policy language and will be based on the specific facts and circumstances of the claim. Consult your insurance advisors or legal counsel for guidance on your organization’s policies and coverage matters and other issues specific to your organization.

This information is provided as a general overview for agents and brokers. Coverage will be underwritten by an insurance subsidiary of Allied World Assurance Company Holdings, Ltd, a Fairfax company (“Allied World”). Such subsidiaries currently carry an A.M. Best rating of “A” (Excellent), a Moody’s rating of “A3” (Good) and a Standard & Poor’s rating of “A-” (Strong), as applicable. Coverage is offered only through licensed agents and brokers. Actual coverage may vary and is subject to policy language as issued. Coverage may not be available in all jurisdictions. Risk management services are provided or arranged through AWAC Services Company, a member company of Allied World. © 2020 Allied World Assurance Company Holdings, Ltd. All rights reserved.




Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]