In our previous article on Sept 25, 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 suggest practical steps that can be taken to contain risks and matters to be aware of when arranging for medical professional liability (MPL) insurance.
Our focus is on international telemedicine, that is, telemedicine transactions that cross the boundaries of different countries. In a Thai context this could include doctors in Thailand providing services by telemedicine to patients in neighbouring countries, a not uncommon situation given Thailand's comparatively advanced healthcare infrastructure.
Telemedicine can be an invaluable tool to overcome 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 healthcare services in international contexts need an adequate appreciation of potential risks and take prudent steps to manage them. In our previous article we emphasised the importance of ensuring due compliance with licensing and accreditation requirements at both ends of an international telemedicine transaction -- particularly when there is a direct patient-provider relationship.
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 treatment is rendered by a provider who is not duly licensed to provide that treatment in the jurisdiction where the service occurs. There could be more dire consequences in jurisdictions that make it a criminal offence to practise medicine without appropriate licensing.
Providers of services via international telemedicine links thus need to be constantly aware of the risk that they may inadvertently be violating another country's laws and policies. They need to ensure that they fully understand and comply with the relevant registration and licensing laws and 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. Australia and New Zealand also have mutual recognition permitting physicians to practise in each jurisdiction.
Types of MPL insurance: There are two types of MPL insurance with two different types of cover: "occurrence" and "claims made" cover. It is important to have a full appreciation of the differences between the two, especially in terms of timing.
Claims-made cover is 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. This can cause confusion. Insurers may use the composite expression "professional indemnity" in respect to both types 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 that 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 while 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 incident giving rise to the claim must have taken place on or after that retroactive date. Depending on 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 applies even if a claim is subsequently made that relates back to an incident that occurred while the policy was in effect.
Conclusion: From this brief discussion it will be apparent that issues arising 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 from the use of telemedicine has not increased markedly. 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.
Peerapan Tungsuwan is a partner and head of the Healthcare Industry Group at Baker McKenzie in Bangkok.
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