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Professional Liability Coverage: Understand Your Options

Choosing insurance for your practice is a big decision in many ways. That decision isn’t cheap, and can have huge financial implications for many years to come. The cost associated with risk mitigation can be substantial. Insurers spend a considerable amount of money investigating and defending claims before a suit ever makes it to court. Such an important decision is stressful, demanding, and time consuming.

Buying a policy is not a static, singular event, but rather a set of decisions that evolves with your practice. It’s a good idea to evaluate your coverage annually, including a quick check of the competition. Take a look at your practice’s history over the past year, taking note of whether any significant changes you’ve made might affect your malpractice coverage needs.

It’s important to know your state’s malpractice insurance minimum requirements (if applicable) before purchasing a policy. Also consider your own asset protection needs, which may vary greatly based on your risk-aversion mentality. It might be in your best interest to work with a professional consultant to determine the appropriate type and amount of coverage for your particular situation.

As a professional in the health care industry, you know that the territory comes with its own set of challenges. A simple professional liability policy will not provide adequate coverage for you and your staff. Specific policies encompass a number of nuances, including generic vs. specific language, types of claims covered, and policy effective vs. claims dates. Additional coverages that are available can range from legal, data security, and regulatory liability coverage too.

Lastly, when reviewing a policy, pay attention to the following elements:

  1. Specific coverage details
  2. Conditions, exclusions
  3. Financial limitations
  4. Policy definitions
  5. Subcontractor liability
  6. Litigation-related costs
  7. Reporting period (claims made vs. claims occurrence)

Contact us today. We would be happy to educate you about your coverage options to ensure your coverage provides peace of mind for you and your practice.

Footnotes

  1. https://www.benzinga.com/money/best-professional-liability-insurance/
  2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2793838/
  3. https://content.naic.org/cipr_topics/topic_medical_malpractice_insurance.htm
  4. https://www.whitecoatinvestor.com/how-to-buy-medical-malpractice-insurance/

Details about the latest relief package

The latest iteration of the COVID-19 relief package from Congress has taken many turns, and it hasn’t even been finalized yet. Some points of contention include:

  • Hospital bailout money
  • Medicaid protection funds
  • Liability protections for health care professionals

Hospital funding is tricky, as well as a moving target. While elective procedures all but stopped in the spring, some hospitals have reported larger than expected earnings during the first half of the year. The current proposed bailout amount is floating somewhere around $25 billion, and while that may seem like a huge infusion to keep hospitals afloat, the industry’s original request was $100 billion.

Medicaid is also tricky, in that it’s supposed to be largely funded by individual states. But when certain states are on the verge of bankruptcy (and it’s a matter of opinion as to whether those reasons are entirely COVID-related), who but the federal government can provide a large enough bailout? The current bill is requesting roughly 12 – 14% in matching federal dollars. One main caveat in this federal bailout is that states cannot cut enrollment numbers while they are taking in the money from the federal government.

On the liability side for hospitals and health care professionals, the bill seeks to provide protections against COVID-related lawsuits. Further, the bill also proposes capping allowable damages if in fact those protections aren’t enough. But neither immunity nor a cap can literally prevent someone from filing suit. And fighting a suit, even if it is eventually dismissed, is costly. Not only in dollars, but in time, morale, and reputation. No one wants this burden when trying to triage patients, but it’s a sad reality for most in the health care industry.

Not all of the potential liability is related to COVID-19, though. Elective procedures that were canceled might have long-term effects on patients, even if they never had the virus. Other potential risk areas include employee protections (ranging from lack of PPE to burnout to overtime pay), misdiagnoses, ratio of personnel to patients, and equipment shortages, to name a few.

As with any legislation, this is largely a waiting game. If you haven’t already, educate yourself about the relief bill. And call your representative so that your voice is heard. Then call your medical liability carrier to see how all of this affects you.

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

Footnotes

  1. https://www.politico.com/news/2020/07/27/senate-coronavirus-package-hospitals-medicaid-383375
  2. https://www.jdsupra.com/legalnews/minimizing-medical-malpractice-90844/
  3. https://thehill.com/policy/finance/509438-stocks-close-down-as-congress-clashes-over-covid-19-relief-bill
  4. https://care-ins.com/

Trends in Coronavirus Legal Issues

COVID-19 has left more in its wake than deserted office buildings and empty restaurants. Litigation claims touch on many aspects of daily living, including business interruption, workplace/employee impact, treatments and cures, legal rights issues, and price gouging, just to name a few. Specifically, health care professionals are closely attuned to the potential legal liability of missed diagnoses, failed treatment plans, and workplace safety. Although the federal government is working to shield healthcare workers from COVID-related liabilities, many civil and class action lawsuits are already in motion.

One major factor that providers can control is their existing liability coverage. It is not uncommon for policies to exclude losses due to unusual circumstances. Couple those exclusions with the fact that much of policymaking is open to interpretation, and you have as many answers to questions as you have experts answering them. What is usually considered ‘business interruption’ when it comes to tangibles, such as a fire or a flood, is easier to define. A physical disaster like that may well level a building, and certainly close a business for months. The owner is now without supplies, equipment, and income. They then file a business interruption claim.

These situations are not as easily defined when it comes to a global pandemic. A healthcare practice is certainly considered essential during such emergencies, so how is loss determined when you are still open for business? One example might be the acute slowdown for non-emergent patient care. This immediately affected healthcare providers from many areas, including dentists, ophthalmologists, and even preventive care providers. Potential patients stayed home for months, avoiding all healthcare facilities, not daring to risk exposure to COVID-19. Does your policy cover this type of situation? It is best to confirm with your agent or carrier now, before you need to file a claim. Discuss your current coverage, along with options to shore up any potential gaps in coverage, so that you can continue operations with that necessary peace of mind.

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

Footnotes

  1. https://topclassactions.com/lawsuit-settlements/coronavirus/a-complete-guide-to-the-coronavirus-outbreak-legal-issues/
  2. https://www.dwt.com/blogs/employment-labor-and-benefits/2020/03/healthcare-employer-coronavirus-legal-issues
  3. https://www.insurancejournal.com/news/national/2020/04/09/564371.htm

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/