Telemedicine Liability – The Real Numbers

Amidst all the interesting legal and regulatory issues implicated by telemedicine, one issue less discussed is the potential liability exposure associated with telemedicine. Many critics have argued that the nature of how telemedicine services are provided will naturally lead to increased risk for malpractice. Available data does not support the argument—at least not yet.

While not a lot of data exists, the Physician Insurers Association of America (“PIAA”) published a July 2015 article comparing telephone treatment medical professional liability (“MPL”) claims versus overall MPL claims reflected in the PIAA Data Sharing Project (“DSP”)—a very large database of MPL claims. Here are the numbers:

• Of the 94,228 total claims in the DSP during the period from 2004-2013, a total of only 196 claims were linked with telephone treatment.
• Of those 196 reported claims, 56 resulted in some form of claim payment.
• The total indemnity loss related to telephone treatment was only $17 million, compared to $8 billion for the total of all MPL losses.
• Telephone treatment claims represented only about 0.21% of all MPL losses.
• The average indemnity loss was also lower for telephone treatment at $303,691, compared to $328,815 for all MPL claims within the DSP.

Among the chief medical factors involved in the claims were diagnostic errors, failure to properly respond, and medication errors. All told, the PIAA data shows very little malpractice activity related to telemedicine. This is confirmed with various discussions I have had with carrier representatives and malpractice defense counsel. The situation, however, is unlikely to stay the same, given the greater use of telemedicine seen over the last few years.

In addition to providing claims data, the PIAA report recommends that telemedicine providers and carriers focus on, among other things:

• Secure computer network systems.
• Protocols for web cams and web-based portals.
• Communication, including how best to achieve a medium clinically effective for the patient, and which makes the most efficient use of the provider’s time.
• Consideration of what might happen to the patient were telemedicine not to be used.

The PIAA report further advises providers to take certain steps to limit liability exposure including: i) meet licensure requirements; ii) develop patient encounter protocols; iii) discuss the risks of telemedicine with patients; and iv) consult with an MPL carrier to fully understand the risks associated with telemedicine. Given that the telemedicine sector continues to mature, MPL risks will need to be closely monitored and evaluated going forward.