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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/

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

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

Are you familiar with the SUPPORT Act and EKRA?

Not one to shy away from lengthy acronyms, Congress passed the SUPPORT Act (Substance Use Prevention that Promotes Opioid Recovery and Treatment) a couple of years ago. What is it? The Act is an attempt to manage various issues related to the opioid crisis through a series of more than 70 separate bills.(1)

Some important highlights of paramount importance to providers include:

  • States must establish a qualifying prescription drug monitoring program (PDMP) and require healthcare providers to check the PDMP for an enrollee’s prescription drug history before prescribing controlled substances. There has been a great deal of discussion about the ability for physicians and pharmacies to track usage in other states as well.
  • The bill increases the maximum number of patients that healthcare providers may initially treat with a medication-assisted treatment plan
  • The Eliminating Kickbacks in Recovery Act (EKRA) is one of the SUPPORT Act’s related bills. This tightens up the laws that make it a federal crime to receive/offer illegal remunerations for patient referrals to recovery homes, clinical treatment facilities, and laboratories.(2)

As with any legislation, there are still issues regarding the applicability of the Act to unrelated arrangements in the healthcare industry that could otherwise be structured to comply with existing federal law.(3) Additionally, EKRA has been criticized as being overly broad and ambiguous.(4)

New laws usually result in new issues for healthcare providers. The more time providers spend trying to figure out what the government wants them to do, the less time they have to dedicate to patient care. What can you do to protect yourself from the potential liability surrounding these new laws? Education is of vital importance, as is ensuring that your risk mitigation plan addresses these issues.

Contact us today. We can help you make sense of these and other laws that affect your risk management plan.

Footnotes

Got an extra $1.4 million to spend? You might need it if you don’t have cybersecurity liability coverage.

Did you know that it costs roughly $1.4 million to recover from a cyberattack? The cost of lost productivity, damage to your practice’s reputation, and service disruption, among other expenses, add up quickly(1). Responding to cyber incidents can be time-consuming too, depleting resources and taking your focus away from patient care.

Data transmission permeates the healthcare industry. While we assume the obvious data breach potential occurs when transmitting PHI (protected health information) data from one provider to another (physician to hospital, for example), even seemingly innocuous DME (durable medical equipment), such as insulin pumps, pacemakers, and infusion pumps, carry the threat of data theft and exposure(2).

CARE Professional Liability Association offers liability policies to protect policyholders against evolving cyber threats. A cyber liability policy covers many aspects of potential risk(3):

  • Privacy or security breach mitigation, including the cost to provide 12 months of credit monitoring and identity restoration services to affected individuals
  • Data restoration, recovery, or replacement costs when data is damaged, corrupted, or destroyed as a direct result of a network security incident
  • Income loss and business interruption expenses
  • Ransom payments to persons reasonably believed to be responsible for a cyber extortion threat
  • Brand loss: loss of net profit incurred as a direct result of a breach notification or adverse media report following a privacy/security breach
  • Claims alleging negligent acts or errors in electronic or print media that results in infringement of copyright, trademark, domain name, or plagiarism
  • Claims alleging liability for failure to prevent or hinder a privacy/security breach
  • Investigations and other civil proceedings brought by government agencies for the enforcement of privacy regulations
  • Written demands for assessments made by acquiring banks or credit card associations due to non-compliance

Contact us today. We are serious about data security and patient privacy. We can help you mitigate cyber security risks before they affect your practice.

Footnotes

  1. https://healthitsecurity.com/features/what-is-cyber-insurance-for-healthcare-organizations
  2. https://www.healthdatamanagement.com/opinion/how-cyber-risk-is-affecting-medical-professional-liability
  3. https://gallery.mailchimp.com/2e65dcb86f6030c0d5aba0903/files/5b57d519-55f8-4271-8ba6-215aa7ae0d6d/CARE_RRG_Agent_Cyber_Flyer_10.17.pdf

Another Strong Partnership Development: CARE and HealthShare

We are excited to announce our partnership with HealthShare, an association with more than 40 years of experience in the healthcare industry. They provide a proven, non-insurance solution to the high cost of paying for healthcare.

HealthShare is managed by SHMI, Inc., which assists its clients in improving healthcare services and reducing costs. Their mission is to facilitate access to quality healthcare at affordable prices. The HealthShare model is centered on a commitment to healthy living and a cost-sharing model of medical care. Learn more about this model here.

The partnership between CARE and HealthShare serves to benefit our clients, agents, and brokers, as it provides a workable solution for you, your peers, and even your clients if they are looking for affordable, high-quality alternatives to traditional health insurance options.

To see more details about how this program works, please click here. Or complete this form to be contacted by a HealthShare professional.

Additionally, you can Contact us at CARE today. We can show you how this new partnership offers benefits to you and your clients.

Opioids and Liability: Understand Your Risk

Opioids and Liability: Understand Your Risk

Opioid-related overdose deaths have more than tripled in the past 20 years. Even more alarming, the rate of correlated emergency room visits has doubled in just the last five years(1). Many providers are unaware or unsure of their liability when it comes to prescribing opioid painkillers. And even when the limit of your liability seems clear, there is no guarantee that your patients understand that and it definitely doesn’t prevent them from filing a malpractice claim.

Our partner, OmniSure, has a host of resources on their website(2) to help you combat potential liability issues. Some suggestions include:

  • PMP (prescription monitoring program): Participate in your state’s PMP to increase the effectiveness of information sharing among providers, pharmacies, and patients
  • Provider education: Educate yourself and your staff on regulations, drug interactions, and protocols for handling adverse events
  • Evidence-based treatment guidelines: Treatment solutions are constantly evolving, so stay updated on new ideas, statistics, and the latest recommendations
  • Fight the addiction stigma: Ensure that your practice understands the importance of making patients feel comfortable discussing any destructive opioid-related patterns they may develop
  • Patient education: help patients understand the signs and symptoms of addiction, as well as promote the help that is available to them

All of these tools can both improve patient safety and reduce potentially litigious situations for your practice.

Opioids are a necessary component of some patient treatment plans. Discussing all options with your patient is a necessary first step. It’s also important to consider alternative prescribing options, such as writing dispensing orders for fewer days and at lower dosages(3). This puts a system of checks and balances in place to more closely monitor patient behavior and in turn reveals potential addictive behavior earlier.

As a CARE LLC policyholder, you can receive discounted services from OmniSure, which includes access to the RiskFit® Helpline(4). This service provides guidance and assistance when you have questions about patient care, such as opioid prescribing. Contact us at CARE today. We can show you the many benefits of being of CARE client.

Footnotes

  1. https://omnisure.wistia.com/medias/taws05pvwz
  2. https://www.riskfitness.com/opioid-liability-resources?cid=85fab4ed-3196-4e75-8828-a8ba9e4067ad
  3. https://www.cdc.gov/drugoverdose/data/prescribing/prescribing-practices.html
  4. https://www.riskfitness.com/