Artificial Intelligence in Healthcare: Who is Liable and Why

In a perfect world, both providers and patients would have total faith in artificial intelligence (AI) and its ability to diagnose and detect disease. (And while we’re at it, COVID-19 wouldn’t exist in a perfect world. But I digress …) However, even AI has to live within the limits of its imperfections. Mistakes are bound to happen, as are missed diagnoses and untreated diseases. It’s not a matter of IF, but rather WHEN it will happen. And when it does, the bigger question for providers is where liability lies: is it with the provider utilizing the AI system, or the company who built it? (1)

The line between user (provider) and developer is definitely blurry. One main dividing line is the law. A manufacturer may be exempt from state-level rulings if legislation exists at the federal level. This is called preemption(2). Potential liability does not only exist on the clinical side of healthcare. Operational and administrative functions, while they stand to make great gains in embracing AI, are also at risk for liability claims. Yet another factor is the patient side. When it comes to patients understanding and following provider instructions, the risk of liability has always existed. Will the introduction of AI protocols increase or decrease this risk? 

AI implementation has two main goals: reduce spending and improve patient outcomes. Overall, the goal is to piece together the puzzle known as the ‘iron triangle’ in the healthcare industry(3): balancing access, affordability, and effectiveness without adversely affecting each of the other factors. However, if users are constantly rechecking an AI’s prognosis, then what greater purpose does the AI serve? It’s not saving time or money at that point.   

If you haven’t already, now is the time to explore the AI applications that have potential within your practice. Research which options are best suited to your organization based on reliability, cost, ROI, personnel adoption, and patient readiness. Viewing all of these angles from the lens of risk mitigation will help you decide which AI applications to implement.

Contact us today. We can review your professional liability policy to ensure your coverage extends to the AI applications in your practice.

Footnotes

  1. https://www.statnews.com/2020/03/09/can-you-sue-artificial-intelligence-algorithm-for-malpractice/
  2. https://dictionary.law.com/Default.aspx?selected=1575
  3. https://www.forbes.com/sites/insights-intelai/2019/02/11/ai-and-healthcare-a-giant-opportunity/#7da71e6b4c68

Vendor Management: A Vital Component to Risk Mitigation

Risk mitigation involves many moving parts, including your employees. However, your employees are not the only human element affecting your potential for liability. Your vendors also need special consideration. Luckily, one of CARE’s industry partners, OmniSure,(1) has compiled a list of recommendations(2) for managing the risk exposure derived from working with third-party vendors.

Tips include:

  • Confirm that a current, signed contract or agreement is on file  
  • Maintain documented proof of current liability insurance
  • Create a process to ensure vendors are compliant with regulatory requirements, licensure, and liability coverage  
  • Verify that all independent contractors have a Federal Tax Identification Number
  • Keep copies of current professional liability and worker’s compensation insurance
  • Ensure each provider’s current license is on file  
  • If applicable: maintain current CLIA waiver to do lab work  
  • Keep contracts and agreements with supporting documentation in a centralized, secure location

OmniSure also has videos and podcasts about vendor relations if you would like more information from them.

The Office of Inspector General (OIG) and the Department of Health & Human Services (HHS) have information, tips, and a searchable database(3) you can use so you can be confident in the liability you’re assuming when you hire vendors. Since the OIG has the authority to exclude individuals and entities from federally funded health care programs, you’ll want to check their LEIE (List of Excluded Individuals & Entities) database for vendors or contractors you plan to utilize at your facility.

If you don’t already have one, create a formalized process for performing due diligence on potential vendors and subcontractors. A documented process serves as the first layer of risk mitigation by ensuring that all new agreements go through the same vetting process. The next step is to train all personnel on this process so that nothing goes unnoticed or undone in the future.

Contact us today. We can review your professional liability policy to see if your current coverage provides protections for vendor liability.

Footnotes

  1. https://www.riskfitness.com/
  2. https://www.riskfitness.com/vendor-management-recommendations?cid=85fab4ed-3196-4e75-8828-a8ba9e4067ad
  3. https://oig.hhs.gov/exclusions/index.asp

Switching from Defense to Offense Amid a Crisis

We understand that our clients in the health care industry are inundated daily (dare we say hourly?) with information about COVID-19. You know how to handle the virus – for yourself, your practice, and your patients. If ‘triage’ wasn’t your middle name before the pandemic, it surely is now. You’re getting info from every news source, from your own administration and from health care experts around the globe. While we hope that our communications have been informative and helpful, we know it’s a lot to digest. And while it may sound difficult, now is the time to shift your focus. It’s time to move from defensive tactics to proactive planning.

You and your staff have been educated, and have learned from daily trial and error how to handle this crisis. With your business continuity plans tested and solidified, it’s time to turn your attention to new areas of focus. These include(1):

  • Workforce management: ensure employees that their personal safety, as well as nontangibles such as their mental well-being and work/life balance, are top priorities
  • Communications (internal and external): reach out to both your employees and your customers to let them know what you are doing to impact change during this crisis; remind them why they depend on you
  • Cybersecurity enhancements: times like these are ripe for exploiting weaknesses, so strengthen your security protocols before you experience a data breach
  • Operational changes: online breaches are not the only threat; access to physical locations needs a thorough review to ensure employee and patient safety
  • Supply chain plans: flexibility is the key to problem solving (for example: even non-virus-related issues, such as simple plumbing repairs at your practice, could take weeks due to parts availability and delayed delivery timelines)
  • Finance and liquidity: payment regulations shift constantly due to governmental oversight; be prepared for income fluctuations by forecasting multiple reimbursement models(2)
  • Regulatory influence: connect with both local and national government officials to offer valuable insight in crisis control and future pandemic planning

Yes, that’s quite an involved list. The good news is that it doesn’t all have to be accomplished today. Proper planning is paramount to switching to a proactive mindset. In the end, the investment of time, energy, money, and resources provides great payoff and benefits when compared with the alternative (wait-and-see) approach. One of the most important things you can do when developing these action plans is to remember why you got into the health care field in the first place. Those foundational principles(3) will guide you to building solid solutions for the elements outlined above.

Contact us today. Your professional liability coverage is just one of many tools you can leverage to set and attain the goals discussed here.

Footnotes

  1. https://www.pwc.com/us/en/library/covid-19/covid-19-and-insurance-industry.html
  2. https://www.forbes.com/sites/brentdykes/2020/04/29/why-your-business-must-double-down-on-data/#5bded2fe7a68
  3. https://hbr.org/2018/01/the-culture-factor

2020: The Perfect Storm

As if the pandemic itself was not enough of a hurricane-like event to the healthcare industry, the upcoming tsunami of lawsuits will surely drown what’s left of health care worker morale and mental health, not to mention bank accounts. The perfect storm of fast-paced changes and dwindling resources has left some providers wondering if their practice will stay afloat throughout 2020.

The healthcare world’s ancillary industries, such as liability and litigation support, ride the same wave of uncertainty and persistent changes in priorities. Weather disaster puns aside, we all must prepare for the upcoming litigation wave now within the confines of our current conditions.

Potential litigation points specific to the healthcare industry include(1):

  • Employment issues
  • Inadequate or improper provision of PPE(2)
  • Business interruption
  • Force majeure clauses in contracts
  • Price gouging complaints
  • Personal injury caused by negligence
  • Medical malpractice
  • Fraud or misrepresentation  

The first step to preparedness is education. Become familiar with how the bullet points listed above may affect your practice. Appoint someone in your organization to serve as a point person for all things pandemic-related. That way, all potential issues can be cross referenced and addressed quickly. This person’s duty is to stay attuned to ever-changing laws and regulations, both at the state and federal levels(3). Then they can take this information and scrutinize any internal policies for necessary updates and changes.

Staying proactive is paramount to staying ahead of potential litigation. Address issues before they become incidents to prevent costly disputes. We are all riding out this storm together, not as competitors, but as one large tribe, trying to save our families, our economy, our industries, ourselves, and each other.

If you are unsure whether your current policy provides adequate coverage for issues related to COVID-19, please contact us today. We can review your professional liability policy to ensure it aligns with current mandates and guidelines.

Footnotes

  1. https://www.natlawreview.com/article/be-prepared-onslaught-coronavirus-related-lawsuits
  2. https://www.marketwatch.com/story/what-we-are-confronting-now-is-really-unprecedented-coronavirus-related-lawsuits-are-poised-to-flood-the-courts-2020-05-08
  3. https://www.washingtonpost.com/politics/2020/05/08/lawsuit-coronavirus-congress/

Telemedicine Updates During an Evolving Crisis

It’s almost impossible to keep current on the constant barrage of new and evolving information regarding telemedicine care during the COVID-19 pandemic. The AMA has updated its Quick Guide(1), which is a series of playbooks that covers best practices and resources for patient care on virtual platforms. These playbooks cover topics such as:

  • Technology (platform options and features)
  • Budgeting and contracting with a vendor
  • Implementation
  • Developing policies
  • Staff training
  • Patient education
  • Coding
  • Payments
  • Other helpful resources

The U.S. Department of Health & Human Services(2) also provides a robust website with information on these topics. They even have a separate web page with information for consumers if your patients are seeking resources and education about how telehealth works. The Center for Connected Health Policy website(3) is also a good resource. Their site breaks down current laws and reimbursement policies at the state level for telemedicine care.

Telemedicine isn’t solely dedicated to COVID-19 patients. It is a smart solution for patients with chronic conditions because it helps minimize potential spread of the virus to the medically fragile population. Telemedicine is also a great option for patients with sudden emergencies. Reducing the number of walk-in patients at provider offices, urgent care clinics, and hospital emergency rooms exposes as few patients as possible to potential infection. Telemedicine can mitigate risk while still delivering care(4).

Telehealth does present its own challenges and risks. The potential for liability increases when providers cannot assess a patient in person. Even with the advent of remote patient-monitoring tools such as blood pressure monitors, Bluetooth-enabled devices, and other wearable technology, there is no substitute for in-person care. There is even equipment that can remotely capture images and communicate biometric data, but even one missed symptom can be problematic. Therefore, it is important to have proper protocols in place when implementing a telehealth option at your practice.

We can review your professional liability policy to ensure your coverage aligns with current telemedicine mandates and guidelines.

Contact us today. We are happy to put our expertise to work for you.

Footnotes

  1. https://www.ama-assn.org/practice-management/digital/ama-quick-guide-telemedicine-practice
  2. https://telehealth.hhs.gov/providers/
  3. https://www.cchpca.org/telehealth-policy/current-state-laws-and-reimbursement-policies
  4. http://exclusive.multibriefs.com/content/telemedicine-webside-manner-and-barriers-to-care/healthcare-administration

Be Prepared for the Pandemic Aftermath

One of CARE’s industry partners, SE Healthcare, offers a COVID-19 Malpractice Mitigation Toolkit(1) for hospitals, physicians, and senior care facilities. This toolkit is designed to protect you and your team against the risk of emerging malpractice threats and potential claims related to the COVID-19 pandemic.

Even the best-intended immunity laws will not prevent all pandemic-related medical malpractice claims because those laws are often focused on protecting treatment decisions surrounding COVID-19 patients. However, many non-COVID healthcare services and procedures were modified, delayed, or cancelled due to the pandemic. In turn, this crisis has created new legal risks, and the repercussions may place your organization at risk for malpractice suits.

The COVID-19 Malpractice Mitigation Toolkit features four components:

  • Brief survey to gauge liability risk
  • Dashboard for easy review of survey results
  • Education and actionable insights related to potential risks
  • Practical tools, templates, and other resources for immediate use

Although resources are stretched thin, NOW is the time to dedicate personnel, resources, and money to establish a contingency plan for when the pandemic fallout emerges. Ask your healthcare staff to provide input on what to include in the plan. Think about areas of risk specific to your health care practice. Potential areas susceptible to future litigation include:

  • Delayed diagnosis of other diseases
  • Ineffective care due to limited resources
  • Failure to appropriately implement telemedicine procedures leading to failed or delayed diagnosis
  • Lack of policies or procedures to prevent pandemic shortages
  • Failure to adequately create, update, or implement emergency preparedness plans
  • Inability to ensure ethical guidelines in place for appropriate allocation of resources
  • Failure to appropriately assure competencies for expanded scope of practice

Contact SE Healthcare(2) to learn more about this valuable toolkit. Here at CARE, we can show you other resources and benefits available to CARE members to help your practice navigate ever-changing mandates and policies.

Footnotes

  1. https://www.sehealthcarequalityconsulting.com/covid-19-malpractice-mitigation-toolkit/
  2. info@sehqc.com
  3. https://care-ins.com/contact/

The CARES Act: How It Helps Your Practice

The CARES Act(1) has many provisions that can help your practice during such trying times. It can be difficult to interpret, and also difficult to determine what steps to take to ensure you receive the benefits available to your practice. An update(2) from MGMA (Medical Group Management Association) can help you make sense of your options. Some highlights include:

  • The Act makes funds available to reimburse (through grants and other mechanisms) eligible healthcare suppliers (i.e., physicians) and providers (i.e., hospitals) for healthcare-related expenses or lost revenues caused by COVID-19
  • You are eligible for an automatic payment if you received Medicare fee-for-service (FFS) reimbursements in 2019
  • The payment amount is based on your share of total Medicare FFS reimbursements received in 2019

Conditions(3) do apply, of which you agree to when you confirm payment receipt. You must also sign an attestation within 30 days of receiving the funds. Some conditions include, but are not limited to, the following:

  • Providers may not “balance bill” patients for expenses related to COVID-19 treatment
  • Provide proof that practice performs diagnoses, testing, and/or care for individuals with possible or actual cases of COVID-19
  • Practice is not currently excluded from participation in Medicare, Medicaid, and other federal health care programs
  • Provider does not currently have Medicare billing privileges revoked
  • Payment will only be used to prevent, prepare for, and respond to coronavirus expenses
  • Submit reports as determined necessary to ensure compliance with conditions that are imposed on the receipt of funds
  • Maintain appropriate records and cost documentation relating to expenditure of funds

This list is not meant to be inclusive of all the terms and conditions relating to the provider relief fund. Please refer to the HHS.gov site for a full list of terms and conditions.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

Life Savers Need Saving Too

One of CARE’s trusted industry partners, SE Healthcare, has created a solution to help providers manage additional stress caused by the COVID-19 crisis. The Burnout Rescue Pack(1) contains seven short, impactful videos and seven audio files from burnout expert Dr. Dike Drummond. Providers receive immediate, actionable guidance to reduce anxiety levels and manage the challenges present in today’s health care environment.

The Burnout Rescue Pack features insights to help physicians:

  • Manage and lower stress levels
  • Prevent and address symptoms of burnout in themselves and their colleagues
  • Maximize downtime
  • Bonus feature: Earn up to 3.0 CME credits 

The Burnout Rescue Pack is a subset of training videos from the only comprehensive burnout program on the market: The Physician Burnout Prevention program. The Burnout Rescue Pack content was selected specifically to address the additional stress being placed upon physicians during the current pandemic crisis. The only cost associated with this package is a one-time fee of $49 per provider.

Included with the pack is a video thank-you message(2) to physicians from Dr. Drummond. Working in the healthcare industry is hectic, even on an average day, but the pandemic crisis is generating front-line PTSD episodes at an alarming rate(3). Even downtime, no matter how brief, should be planned with great care. Rest and respite are critical to rejuvenation, and enable health care professionals to return to the front line recharged.

Contact us today to learn more about the Burnout Rescue pack. We can also connect you with other physician wellness tools that are available to CARE members.

Footnotes

From Triage to Trial

Healthcare professionals working the front lines are faced with difficult decisions every day. Compound that with the COVID-19 pandemic, working around the clock, and worrying about their own health and safety. Basic triage decisions have evolved into heartbreaking shifts, with hardly any respite for those facing the onslaught day after day.

As is the norm in our litigious culture, what will follow is a wave of potential malpractice suits(1), some due to the triage decisioning process, and others because healthcare facilities lack basic supplies, such as face masks and ventilators. While it seems unthinkable to accuse a medical professional of making the wrong decision when they are putting themselves at great personal risk to treat so many others, it will happen.

The key to triaging patients during a global pandemic is consistency. It is paramount to determine – and stick with – clear, concise, specific policies that do not discriminate based on subjective criteria. A healthcare professional cannot simply decide if a patient is too old or too sick (based on other comorbid conditions) every time they triage a new patient. The clearer the guidance, the more objective employees can be. Follow up these decisions with proper documentation to ensure that guidelines were followed, and the documentation can serve as the collective memory, even once this pandemic has past.

There’s also the question of how to determine what a pandemic triage policy should be, when (hopefully), each of us will only go through something so impactful once in our lifetimes. For example, the next outbreak might not require such a large demand for ventilators, so how do we determine (and who decides) what is normal or expected?

In terms of prevention, healthcare facilities can support their personnel by addressing the anxiety and confidence dips that are normal during a global health crisis. Health care workers cannot calm and reassure the public when they aren’t being reassured themselves. The concerns of health care professionals can be summed up in five categories: hear me, protect me, prepare me, support me, and care for me(2).  

There is no clear way to end an article about an ever-evolving situation. So much is unknown and uncertain. The most important thing we as professionals in the healthcare industry can do right now is protect ourselves. And each other.

Footnotes

You’re a Specialist? You Need Specialized Coverage.

While a general practitioner is usually comfortable with basic medical liability coverage, specialty providers have specific needs and circumstances that merit special consideration. If you are a specialist, consider seeking malpractice coverage from a company that knows the specifics of your industry.

CARE Professional Liability Association, LLC offers the following types of specialty coverage:

  • Dental
  • Chiropractic
  • Pain Management
  • Medical Directorship
  • Bariatric Surgery

A CARE policy offers solid, affordable coverage to physicians from coast to coast. Our goals are to offer the lowest premium possible and tailored flexibility to meet a specialty practice’s needs. Some features of a CARE policy include:

  • Claims-made coverage
  • Limits available that meet or exceed state requirements
  • Death, disability, and retirement (DD&R) available
  • Coverage for multi-specialty groups
  • Ancillary personnel can be covered on a shared limit basis (subject to certain restrictions)
  • Special pricing for part-time, low-volume visits, low reads, deliveries, and surgery
  • Multiple deductible options available
  • Policy can be tailored to meet the specialty physician’s needs
  • Proactive risk management program included with policy
  • Installment financing available

According to a 2019 Medscape survey, approximately 59% of physicians who responded said they have been named in a malpractice suit(1). Given that statistic, providers need to carefully consider their liability coverage options. A robust policy is a substantial investment, but it can also save your practice from bankruptcy should you ever be involved in a malpractice claim. Policy costs vary greatly, depending on the type of medical professionals covered in the policy(2). This is one reason why you should partner with a risk retention group that understands the nuances of specialty practices. It’s an art and a science balancing coverage and cost, and experienced underwriters can develop a policy that provides you with the best solution.

Contact us today. Our underwriters understand the challenges of specialty practices. Put our years of experience to work for you.

Footnotes