Med Mal Insurance in the Era of Telehealth
With the rise of remote healthcare, telemedicine and telehealth have become integral to modern medical practices. While often used interchangeably, these terms are distinct in scope, and these distinctions can have significant implications for medical malpractice coverage.
As telehealth and telemedicine continue to evolve, it is also essential for providers to understand how recent regulatory changes and advancements in technology affect their med mal coverage. If telehealth or telemedicine is part of your practice, protecting yourself from liability means ensuring you are covered for the associated risks.
Telehealth vs. telemedicine: why the distinction matters for med mal coverage
Telehealth refers to a broad category of healthcare services provided remotely, encompassing a wide range of activities, such as administrative functions like the electronic transfer of medical records, consultations between healthcare professionals, and non-clinical services like employee training. Telehealth does not always involve direct patient care; rather, it can include phone, text, email, or video communication to facilitate the coordination of healthcare services.
Telemedicine is a subset of telehealth that specifically involves providing clinical care to patients at a distance. This could include video consultations with patients, virtual mental health counseling, follow-up care, diagnosing illnesses, prescribing medications, digital monitoring of vitals or chronic conditions, or even overseeing surgical procedures remotely.
While some policies may broadly cover med mal telehealth activities, telemedicine’s clinical nature exposes providers to greater risks, which may not be covered unless specifically addressed.
Does my policy cover telehealth?
Traditional med mal policies are designed to cover in-person medical care, and it’s important not to assume coverage is automatically extended to services provided remotely. So, while a virtual team meeting to discuss a patient’s treatment plan may be covered as a part of general telehealth activities, prescribing medication or offering a diagnosis via video call likely constitutes telemedicine. Given the rapid expansion of telehealth and telemedicine, many insurers now require telemedicine supplemental applications before confirming coverage extends to remote care.
Regulatory changes and impact on telehealth med mal coverage
Regulatory requirements for remote healthcare vary by state and have been evolving rapidly, aiming to ensure patient safety and privacy while making remote care more accessible. Examples of changes impacting telehealth and telemedicine, and by extension, med mal coverage include:
1. Licensing and state requirements
Some states require providers to have a valid medical license in the state where the patient resides, even if the provider is located elsewhere, which can create compliance challenges for providers offering care to patients across state lines. Temporary waivers during the COVID-19 pandemic made it easier for providers to offer telemedicine outside their home state, but many of these waivers are now expiring, and providers must revert to pre-pandemic licensing requirements.
These laws are made at the state level rather than by the carrier. Your carrier cannot make exceptions to state regulations and is not obligated to cover claims arising from acts performed while unlicensed in the patient’s state of residence. If you offer telemedicine across state borders without proper licensure, you face increased liability.
2. Standard of care
Telemedicine still requires adherence to the same standards of care as in-person visits. In fact, many state laws specify that the standard of care in telemedicine should be equivalent to that of traditional medical services, including the same diagnostic, treatment, and follow-up procedures. Failure to abide can result in malpractice claims, underscoring the importance of ensuring your med mal policy covers remote care services.
3. Informed consent
Many states require telemedicine providers to obtain patients’ informed consent before remote consultations to explain the risks and limitations of telemedicine, as well as alternatives to the treatment. Not securing proper consent could result in liability and may not be covered by your med mal policy if the omission is deemed negligent.
4. Data security and privacy
Telehealth and telemedicine rely on digital communication, introducing new risks to patient data privacy. Under the Health Insurance Portability and Accountability Act (HIPAA), healthcare providers must ensure all remote communications are secure and patient information is protected. Any data breach could lead to lawsuits, and standard med mal policies may offer only small sublimits for cybersecurity issues. We recommend standalone cyber coverage for all providers and their practices for this and other reasons. Alleged HIPAA violations could be covered under a Billing E&O policy.
Steps to confirm telemedicine med mal coverage
To safeguard your practice and ensure that you and your patients are protected when providing remote care, follow these steps:
1. Review your existing policy
Review your current med mal insurance policy to determine whether it covers telehealth and telemedicine. Look for specific clauses or exclusions related to remote care. Ask us to clarify any unclear points, or even better, reach out to us before deep diving into your policy language. We believe in the peace of mind that comes from knowing you’re covered.
2. Notify your insurance broker
If you practice telemedicine, let us know. We’ll provide the documents the insurer uses to assess the risks associated with remote care and confirm whether your policy extends coverage to these services. If your current carrier declines to provide adequate telemedicine coverage, we can help you explore alternative policies.
3. Stay up to date with regulations
Telehealth and telemedicine regulations are constantly evolving, and it’s ultimately the provider’s responsibility to stay informed and in compliance with licensing, consent, and data privacy requirements in every state where you practice remotely. If any regulatory changes may affect your practice, let us know so we can update coverage.
4. Consider a standalone telemedicine policy
Depending on the scope of your remote practice, you may need a standalone med mal telehealth policy. These policies are designed specifically to cover the unique risks of remote care and often include provisions for cybersecurity, cross-state licensing, and telemedicine-specific regulations.
Reach out to L&J
If you're already offering telehealth or telemedicine services, now is the time to verify your medical malpractice coverage reflects the exposure. Reach out to us to discuss your options and ensure your carrier understands your practice profile. By staying proactive, you can protect yourself from potential liability and continue offering high-quality care to your patients, no matter where they are located.