The emergence of telehealth and remote consultation services, particularly since the COVID-19 pandemic, has changed healthcare. For medical malpractice insurers, this shift presents a complex and evolving risk landscape.

This article examines the key medical malpractice risks associated with telehealth and remote consultations from an insurer's perspective.

What are the key malpractice risks in telehealth consultations? 

Delayed or missed diagnosis

A practitioner conducting a telehealth consultation is expected to exercise the same degree of skill, care, and diligence as would be expected in a face-to-face setting. Meeting this standard remotely can be difficult. Without physical examinations there is an increased reliance on patients' self-reporting, which can be unreliable, some patients may not reveal all symptoms. Further a hands on assessment shows more in terms of changes to the body and this can lead to a delayed or missed diagnosis.

Missed and delayed diagnoses are among the most common categories of clinical negligence claims generally, and remote consultations amplify this risk. Insurers should anticipate that failure-to-diagnose claims will feature prominently in telehealth-related malpractice litigation.

Robust triage and escalation protocols are essential to mitigate diagnostic risk in telehealth. Practitioners must be trained to recognise the boundaries of remote assessment and to refer patients for in-person evaluation where clinical uncertainty exists. The absence of such protocols, or a failure to follow them, is likely to be a significant factor in establishing liability.

Prescription of medication

There is a further risk of prescribing medication without sufficient clinical information.

We can look to the prescription of weight loss medication as a prime example of this. Patient screenings can be limited to a self-completed online questionnaire, with no independent verification of medical history, current medications, or contraindications. Patients are not necessarily completing these forms honestly and failing to disclose underlying issues or relevant family issues to ensure that they are prescribed the medication.

Insurers should be alert to the heightened malpractice exposure associated with telehealth providers who prescribe such medications without adequate safeguards, including appropriate patient screening, baseline investigations, follow-up monitoring, detailed consent forms, and pre-appointment histories.

Consent 

Obtaining informed consent is another common category of clinical negligence claims. The brevity of many telehealth consultations may not allow sufficient time for a thorough discussion of risks, benefits, and alternatives and the absence of face-to-face interaction may impair the clinician's ability to assess whether the patient has genuinely understood the information provided. It is essential that detailed notes are taken throughout the consultation. 

Recorded consultations could however alleviate this risk and assist with managing the defence of these claims.  

Risk mitigation strategies for healthcare providers and insurers

Effective risk mitigation in the telehealth context requires a collaborative approach between healthcare providers and their insurers. For providers, key strategies include the implementation of robust clinical protocols for telehealth consultations, comprehensive patient screening and triage procedures, clear escalation pathways for cases requiring in-person assessment, and thorough documentation of all remote consultations.

For insurers, risk mitigation measures may include the development of telehealth-specific underwriting guidelines, mandatory risk management training for insured telehealth providers, regular auditing of prescribing practices, and the incorporation of telehealth-specific terms and conditions into policy wordings. Proactive engagement with insureds on telehealth best practices can reduce claims frequency and improve the defensibility of claims that do arise.

Conclusion: Adapting to the evolving telehealth risk landscape

Telehealth and remote consultations are now an established and growing part of healthcare. For medical malpractice insurers, this evolution presents both challenges and opportunities. The risks relate to several common categories of clinical negligence claims including delayed or misdiagnosis, consent, and prescribing issues are amplified by specific market developments such as the weight loss drug prescribing boom.

Insurers who proactively adapt their underwriting, policy design, and claims management strategies to address telehealth-specific risks will be best positioned to navigate this evolving landscape. Those who fail to do so risk being caught out by a wave of claims arising from a mode of healthcare delivery that their products were not designed to cover.