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Telemedicine and malpractice insurance

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Telemedicine and malpractice insurance
Telemedicine service in progress.

By Femi Obikunle

TELEMEDICINE  involves remote diagnosis and treatment of patients through telecommunication technology. It is manifestly beyond diagnosis and prescription through telephone as the average person tends to think. Telemedicine allows patients to access medical expertise quickly and efficiently without the need to travel.

Telemedicine services can be used for a number of non-emergency situations such as diagnoses of common medical problems such as allergies, asthma, bronchitis, cold, or flu, ear infection, pinkeye, rashes, digestive problems, and many other issues.

Some of the potential benefits of telemedicine include increased access to health care (especially in underserved areas and among underserved populations), expanded utilization of specialty expertise, system coordination and integration, ready availability of patient records, and reduced opportunity costs of care for patients.

These advantages and benefits of telemedicine practice must be balanced with the reality of any professional practice. Professionals are individuals who have passed rigorous examinations, are licensed to practise, subscribe to ethical guidelines and mandatory continuous post-qualification training.

Employers and telemedicine practitioners ought to be concerned about medical malpractice claims, and how the use of telemedicine may affect their legal responsibility. Telemedicine may give rise to complex legal issues for medical practitioners in Nigeria, if proper procedures and guidelines are not followed.

These claims may arise from:

  1. i) Malfunctioning of telehealth equipment
  2. ii) Wrong diagnosis

iii) Wrong patient records access

  1. iv) Non-access to patient records
  2. v) Prolonged downtime of the telemedicine system
  3. vi) Professional negligence of telemedicine practitioners

vii) Failure of telepharmacy

viii) Post-telesurgery complications

  1. ix) Employers’ collateral liability
  2. x) Telemedicine employees malfeasance

Telemedicine insurance plays a very fundamental role in ensuring that professionals and their employers are financially protected against these claims.

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Malpractice describes a breach duty owed by someone rendering professional services to a person who has contracted for such services. According to Gostin (2000), the mortality resulting from medical errors each year in USA is estimated to be between 44,000 and 98,000 per year, accounting for more deaths than motor vehicles crash, breast cancer, or Acquired Immunodeficiency Syndrome. It is instructive at this juncture to review the trend of Malpractice claims in a North American State.

No-Fault Compensation for Medical Injury: A Case Study: According to Horwitz and Brennam (1995), Florida found itself facing a crisis in medical malpractice liability in the 1970s and 1980s. Between 1970 and 1975, more than twenty medical malpractice insurers canceled their coverage of Florida physicians, and by the mid-1980s the state’s largest malpractice insurer ceased doing business there altogether.

The major reasons for this closure of malpractice claims were increasing, particularly for obstetrics; and severity of claims (that is, the amount paid out) also was increasing, again particularly for obstetrical cases. Clearly, a legislative response to the perceived crisis was called for.

In 1988, Florida passed a bill transferring liability cases for newborn infants’ neurological injuries from the tort system to a no-fault system. Unlike the tort system, no-fault liability compensates patients who suffer any treatment-induced injury, not just those that can be traced to medical malpractice, or negligence (Horwitz and Brennan, 1995).

This is a qualitative advisory for countries that are yet to embrace telemedicine practice.

In USA, Kilpatrick and Cody (2009) from Georgia Telemedicine Center (College of Medicine) stated that “a current argument has been made that a physician carrying out consulting services in telemedicine should be protected from malpractice claims from a referring physician. Current case law suggests that courts will find a physician-patient relationship, and hence contractual obligation exists in telemedicine.

According to Kilpatrick and Cody (2009), the courts determined that the following factors to form the basis of such relationships:

1) If the Consultant has met the patient, or know the patient’s name;

2) If the Consultant examined the patient’s chart;

3) If the Consultant examined the patient;

4) If the Consultant accepted a fee for his, or her services.

It is possible for a consulting physician to establish legal physician-patient relationships if any of these conditions are met. Group professional liability insurance reduces cost for individual practitioners as the following example demonstrates.

“Some experts in the field of telemedicine argue that telemedicine reduces individual practitioner’s liability because the practice involves collaborations between several healthcare professionals.

However, there is a general consensus that telemedicine raises patients’ expectations which could lead to malpractice claims when their needs are not fulfilled. In addition, the practice itself could challenge an insurance company with regards to the grey area of coverage provided that may not be properly written.

According to a round table discussion coordinated by Diane Hoffmann, who is a Professor of Law at the Maryland School of Law and Health Program ( 2010), “ there has been a lack of telemedicine malpractice cases from which to draw some ground rules about legal risks associated with telemedicine.

“The majority of legal actions that have been associated with telemedicine were brought against providers who prescribed medication over the internet, rather than claims brought against providers for negligent care administered through telemedicine.”

The case study was designed to stimulate discussion involved the provision of teleoncology consultation services by a medical center in one state to patients in another state.

The complicated fact pattern included a patient (Kay) located in Oklahoma and diagnosed by her attending physician (Dr. Local) with lung cancer but also being seen by a consulting oncologist Although there are few legal cases involving telemedicine, there is a widespread assumption that telemedicine may pose new complications to traditional medical malpractice claims, in particular jurisdictional, choice of law, and procedural issues and duty of care concerns.

As the use of telemedicaaaa2ine grows, malpractice claims relating to telemedicine services may increase and, if so, these complications are likely to create a new body of law.

Another illustrative malpractice claim is expounded in a recent case in Telemedicine malpractice that related to online prescribing was that of a United States doctor who was sentenced in 2017, to nine months in county jail with a fine of more than $4,000 for practicing medicine in a patient’s home state without being licensed in that state.

It began when a patient filled out an online questionnaire. The website forwarded their responses to a processing firm which sent them to the physician, who was subcontracting for an online pharmacy and prescribed an antidepressant to the patient. Shortly after filling the prescription, the patient committed suicide.

THE doctor, pharmacy, website, and patient were all located in different states. The court decided the doctor needed to have been licensed in the patient’s home state to prescribe medicine to someone living there, and the doctor pleaded no contest to the felony charge (Reisenwitz C.,2017). The real cases highlighted above indicate that novel claims can be brought against telemedicine firms and practitioners which may not be applicable in traditional medical practice.

Questions

The following questions must be satisfactorily resolved before a world-class telemedicine practice could be in place. The questions have been grouped for the stakeholders practice. Questions to consider by Nigeria insurance companies:

*Are the employees in their clients’ companies provided adequate guidelines about the coverage plans?

*What telemedicine services are they covering?

*Are the quotations provided for telemedicine billing explained thoroughly and consistent across board?

*Are there billing coding templates for telemedicine provided to the clinical setting? Is this coding approved by the Nigeria Insurance Commission?

*Are telemedicine services covered in the malpractice insurance offered to companies?

*How are the insurance companies in Nigeria planning against issues that relate to the legal and moral aspects of telemedicine such as the confidentiality of patient records, reimbursements, and the jurisdictional difficulties related to cross-border consultations?

*Does the insurance company that a company employee uses have a written document to validate that the clinic being used by a patient uses telemedicine?

*Medical professional liability insurers will need to think through how they will respond to the adoption of different licensure models by various states. If a group of states agree to accept the licensure decisions of each other (in a reciprocal agreement) will the insurer feel the need to be licensed in each of the states where the insured is “practicing”?

*Does telemedicine present unique challenges for medical professional liability insurers?

Questions to consider by regulators:

* Are there licensing requirements for the clinical setting to practise telemedicine within a particular state or jurisdiction?

*Are there separate licensing requirements to practice telemedicine across states?

*Does telemedicine pose the same malpractice challenge as the traditional face to face way of medical practice?

*Do the unique attributes of telecommunications technology increase telemedicine practitioner’s liability?

*Is there recognition for telemedicine billing in Insurance practice?

*Are these billings standardised throughout Insurance Industry?

*What role is the Nigeria Medical Board currently playing with regards to telemedicine standards, policies, procedures, and guidelines?

*Widespread dissemination of telemedicine may be affected by the availability of Medical Professional Liability, MPL, insurance coverage for the practice. How will Nigeria regulators handle this issue?

*Should practitioners be held to the same standard as others in their field or to a separate telemedicine standard?

Because telemedicine is a relatively new field, it is still unclear whether the professional liability insurance industry will treat telemedicine differently from other medical practices. If telemedicine is treated differently, premium rates may be increased and additional types of insurance may be required.

Nigeria legal practitioners need to ponder on these questions:

*Does the telemedicine patient insurance consent form contain the right wordings?

*Are the policies and guidelines for telemedicine by the clinics where telemedicine is practised clearly stated, filed, and documented?

*What new legal standards will be created as a result of telemedicine in Nigeria?

*How are the legal principles of medical practice applied to telemedicine?

*Will the same legal principle that applies to the conventional face-to-face doctor-patient relationship be equally valid with telemedicine practice?

*How does the law view the practice of telemedicine in Nigeria?

*Litigation issues – telemedicine may introduce new dynamics into malpractice litigation such as new statutes, unique judge and jury characteristics, and environmental factors such as rural versus urban concerns.

*Who, if anyone, is responsible for the failure of the equipment or internet connection? Can any steps be taken to minimize risks and responsibilities for communications failures, such as prohibiting telemedicine consultations when a communication failure could lead to serious injury or death?

*What degree of internet availability should be required for telemedicine and who should make that determination?

Clinical settings need to think about these questions:

*Does the clinical setting have malpractice insurance?

*Are physicians in their clinics allowed to practice telemedicine?

*Does the telemedicine insurance coverage cover all the physicians and healthcare works operating telemedicine within the clinical setting?

*Is there a form prepared by the clinical setting for a patient to sign in relation to their consent and confidentiality or privacy?

*Are the physicians in the clinical settings certified to practice telemedicine?

Employers need to consider these questions:

*Are the companies where their employees are being sent for telemedicine consultation having good reputation?

*Was the mortality or morbidly rate of the clinical setting verified?

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Way forward

*A Nigeria Telemedicine Act needs to be established. This ensures that healthcare workers within a particular jurisdiction are licensed appropriately to practise telemedicine, and understand billing guidelines.

*Setting up of a comprehensive Telemedicine Policy, procedures, and guidelines.

*Careful telemedicine planning will limit costly liability exposure.

* Insurance coding revisions that gives room for adaptation for telemedicine innovation and variants.

*There needs to be an effective coordination between Healthcare practitioners and Insurance bodies in constructing a unified billing template. This can be enhanced through running appropriate workshops.

*Telemedicine patient consent form needs to be completed per each consultation and accurate records need to be kept in case of insurance audit.

*The Federal Government of Nigeria, through its various bodies, needs to be involved in developing a national telemedicine strategy that will include cost/payment, privacy, licensure, malpractice insurance, standardization, and other forms of telemedicine liabilities.

Insurance

All insurance companies need to establish telemedicine benefit plan that provides flexible coverage options for individual and family coverages. And physicians should make affordable provisions for patients who are not able to make payment.

*There is the need for the provision of state-of-the-art technology to attain operational excellence, while contributing to prompt service delivery.

*Provision of effective health risk management solutions and financial services to both individuals and corporate bodies.

*Plan to militate against cyber exposure, and guide against medical fraud abuse.

*Provision of flexible healthcare plans where clients can have access to an array of healthcare benefits, including telemedicine within a given insurance network throughout their branches within the country and understands cross border implications as well.

*Medical group practices need to properly address the legal issues that will minimize their liability exposure for providing telemedicine services. In addition, clinical settings needs to give careful scrutiny to telemedicine contracts when negotiating managed care contracts.

Conclusion

Telemedicine has introduced a new dimension to healthcare delivery system in Nigeria. As a result, salient issues that come with the implementation need to be understood by healthcare practitioners, insurance companies, lawyers and the governing bodies associated with insurance and healthcare delivery ecosystem.

These governing bodies include the Nigeria Insurance Association, Nigeria Insurance Commissions, Chartered Institute of Insurers of Nigeria, Nigeria Insurers Brokers Association, and Nigeria Medical Board.

All these stakeholders need to work together in setting standards, procedures, guidelines, billing templates, and so on, in ensuring a successful telemedicine adoption within the country, in order to minimise the tendency for malpractice liability and medical fraud.

Dr.  Obikunle is a Certified Telehealth Clinical Presenter, CTCP, and  Doctor of Business Administration – Healthcare Management (Telemedicine), USA.

VANGUARD

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