Digital Healthcare and the Uncertain Malpractice Landscape

by | Sep 11, 2023

The digital healthcare revolution has taken the country by storm – an exciting new area, where opportunities abound for commercial agents. This rapid growth, was fueled by a combination of changing lifestyle trends, technological advancements and a shortfall in healthcare professionals. And digital healthcare has delivered – from remote consultations and patient monitoring, to electronic health records and health information exchange (HIE). But there is a dark side to this revolution – The potential for a corresponding explosion in malpractice claims.

This rapid growth of technology within healthcare has introduced new dimensions of professional liability that are as yet uncertain and unregulated. From misdiagnosis due to the limitations of examination by webcam, to the potential hacking of online medical monitoring systems, the vulnerabilities are numerous and unsettling.

When this is combined with the insatiable American appetite for litigation and the increasing severity of claims, it opens a Pandora’s box of potential liabilities — and uncertain E&O exposure to commercial agents.

The Promise of Convenience vs. The Risk of Misdiagnosis

Telehealth consultations have certainly made it easier for patients to seek medical advice, especially when they’re unable to travel or in remote locations

They have also helped alleviate wait times brought about by staff shortages in the industry. However, there are still questions about the quality of care provided remotely.

Real-World Case: Webcam Diagnosis Leads to Wrong Treatment

In one real-world example, a New Jersey patient was prescribed antibiotics via a telehealth consultation for what the physician presumed to be a bacterial skin infection. Weeks later, the problem persisted and was correctly identified as a fungal infection through an in-person visit, delaying proper treatment.

A 2019 study published in JAMA Dermatology, for instance, found that teledermatology misdiagnosed certain skin conditions 17.6% of the time compared to in-person consultations.This rate is unlikely to have changed since then, as image quality limitations, combined with the inability of patients to properly photograph liaisons remains the major hurdle.

Data Integrity and Online Medical Monitoring

The convenience of remote patient monitoring with Internet of Things devices can’t be overstated, but this comes with a whole new set of cybersecurity vulnerabilities. Medical devices like pacemakers, insulin pumps, and continuous glucose monitors can be accessed remotely for real-time data, but this also opens up the possibility of hacking. Ransomware cases take on a whole new level of urgency when the lives of patients attached to the hacked monitoring devices are at stake.

Real-World Case: Hospital Sued Over Pacemaker Data Breach

In a groundbreaking case, a hospital in California faced legal repercussions when its online patient monitoring system was hacked, compromising the data and settings of pacemakers for multiple patients. While in this instance, no physical harm came to the patients, the breach exposed the hospital to significant liability concerns around data privacy and the integrity of remote monitoringx.

AI Algorithms and Clinical Decision Support

Artificial Intelligence (AI) has been increasingly integrated into diagnostic procedures, and while it holds great promise, its use is fraught with potential legal complications. AI is only as good as its algorithm programming. When slight variations of a condition — not yet built into this algorithms — reveal something different, the potential for misdiagnosis and resulting litigation is rife.

Real-World Case: AI Misreads X-Ray, Negligence Claim Filed

An AI system at a Texas hospital mistakenly identified a benign tumor as malignant, leading to unnecessary treatment for the patient. A subsequent lawsuit questioned not just the physician’s reliance on the AI but also the accountability of the tech companies providing these AI solutions. becomes a subject of concern, particularly in a country where medical malpractice suits are common.

America’s Insatiable Appetite for Litigation

All these complexities are accentuated by America’s insatiable culture of litigation. According to a 2022 report from the American Medical Association, 31.2 percent of physicians reported that they have had a medical liability lawsuit filed against them at some point in their careers.

More alarming than the number of lawsuits, are the amounts awarded by juries in malpractice verdicts. 2022’s verdicts included a jaw-dropping $111 million verdict in Minnesota involved a young man who suffered permanent injuries due to misdiagnosis and delayed treatment of acute compartment syndrome. Negligence during childbirth in Iowa resulted in a $97.4 million award and a wrongful death in Georgia stemming from a series of errors at a psychiatric facility, resulted in a record-breaking  $77 million payout.

These colossal verdicts — among the largest ever seen in medical malpractice litigation — serve as cautionary tales for healthcare providers and point to a growing demonization of the medical establishment by the public; and a desire by jurors to not just compensate, but to enrich the plaintiffs at the expense of healthcare providers.

These cases also highlight the acute risks and devastating consequences of medical errors, adding another layer of complexity to an already uncertain professional liability landscape.

Conclusion

The surge in digital healthcare services, from telehealth consultations to remote patient tracking and AI-driven diagnoses, has unleashed a torrent of unforeseen vulnerabilities that remain ambiguously regulated. As the tide of technology rises in healthcare, commercial agents find themselves navigating treacherous waters, needing to meticulously assess all possible risks. This includes those emanating from affiliations with third-party entities like IT service providers, amidst a convoluted and ever-shifting legal quagmire.

Given the tempestuous nature of this sector, it’s imperative for agents to partner with a seasoned broker like Westwood. We have the resources and experience to keep pace with the constantly changing insurance landscapes and the evolving legal storm fronts.

Don’t risk leaving your Digital Healthcare Clients adrift. Contact Dale Nelson at 855-351-7487 for a comprehensive risk assessment and guidance on the safest, most suitable coverage.

Dale Nelson

Dale Nelson

Senior Broker, Westwood Insurance Group

Dale has worked in the insurance industry since leaving college, specializing in the healthcare niche. He has developed long-term relationships with insurance carriers and retailers in the Medical Professional Liability area. Dale has worked with carriers, retailers and brokers and so works effectively at helping agents solve problems for their clients.

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