With telemedicine, there’s no place like home

Mike Griffiths, regional director of healthcare at Howden Insurance Brokers, unpicks the regulatory and liability implications of telemedicine in Singapore.

Here’s a puzzle for you: A telemedicine company in Singapore engages a local GP to provide medical consultations via video link. One local subscriber to the telemedicine service goes on holiday to Queensland, Australia, and while there requests a teleconsultation due to a painful swelling that has developed on one of his fingers, accompanied by a headache. The GP examines the finger on her video screen and concludes that it is an insect bite. She rules out any head injuries. As she is unable to
prescribe medicines in Australia, the GP instructs the patient to visit a local pharmacy
and obtain an over-the-counter antihistamine cream such as Benadryl to help ease pain and itching at the site, and codeine for the headache. So in which country did this take place?

Before we try to answer, I should point out that this is by no means a purely theoretical scenario for Singapore’s doctors.

Telemedicine here has undergone an explosion in recent months, actively encouraged by the Ministry of Health. Singapore boasts all the elements thought conducive to the success of telemedicine; an ageing population, a prevalence of chronic disease (especially hypertension, high blood cholesterol, and diabetes), a public health system under pressure, and a relatively high take-up rate for new technology.

There are nine separate telemedicine providers already registered here, almost all of them start-up companies with young tech-savvy management teams keen to disrupt the primary
healthcare market.

The answer to our puzzle is that there is yet no answer.

Telemedicine is too new in Asia for the laws governing it to have developed. Singapore’s Ministry of Health, to its’ credit, has set up a regulatory sandbox to consult with telemedicine providers to develop a regulatory regime, but it will be some time before
that process is completed. In the absence of local laws, we must look further afield for guidance.

In the US, where at least some states have begun to regulate telemedicine, opinion appears to be leaning toward the view that the patient’s location is the deciding factor.

The language used in relation to medical treatment supports this – doctors provide medical treatment to their patients, and so the location of the patient must be where the treatment occurs.

Seems reasonable. But why does any of this matter?

Well, from the perspective of the GP in our scenario, the reason is that Medical Malpractice Insurance often only covers claims related to treatment provided in Singapore.

Let’s return to our scenario. The Singaporean patient in Australia follows the advice provided by the GP and applies antihistamine cream to the bite. Later that evening, the patient falls seriously ill and is rushed to hospital where it is determined that he has been stung by a box jellyfish, a charming animal found in the seas around Australia and sometimes known as the world’s most venomous creature.

Happily, the patient makes a full recovery and is eventually discharged from hospital. A month later, however, our GP finds herself caught up in three different actions:

The patient brings a legal claim in Singapore’s courts alleging that the failure to diagnose the jellyfish sting correctly amounted to malpractice.

The Singapore Medical Council, acting on a complaint brought by the Medical Board of Australia, begins investigating whether the GP has practised medicine in Australia while unregistered.

The Australian Health Practitioners Registration Agency launches a criminal action against the GP in Australia, charging her with practising whilst unregistered.

The first action, the legal claim by the patient, is a straightforward example of a medical malpractice claim and would in other circumstances almost certainly be covered.

However, let’s assume that the GP’s policy has a condition limiting cover to claims arising from treatment rendered in Singapore.

While this is a claim being brought by a Singaporean patient against a Singaporean GP in Singapore’s courts, there is at least some doubt as to whether the medical care was rendered in Singapore or Australia.

The second action, the investigation by the SMC, is another example of an event that would normally be unproblematic as the costs of obtaining legal advice to assist in responding to an SMC investigation are routinely covered under most Medical Malpractice Insurance policies.

Again, however, the nature of the allegation, in this case, will create a degree of doubt as to whether the policy will respond.

The third action, the criminal case brought by the Australian Health Practitioners Registration Agency, is perhaps the most difficult of all.

The GP cannot ignore the proceedings, as judgments in Commonwealth countries (including Singapore and Australia) are subject to reciprocal enforcement agreements.

From an insurance perspective, most Medical Malpractice Insurance policies issued in Singapore only provide cover for claims brought in Singapore’s legal jurisdiction.

A claim brought in the Australian courts would likely be subject to a specific exclusion, and no cover would be available.

Our GP, who may have earned as little as US$10 for providing this teleconsultation, is now facing civil action and a regulatory investigation in Singapore and a criminal charge in a foreign jurisdiction. Next comes the meeting that every insurance broker dreads.

At this time of greatest need, the GP must be informed that there is doubt around the availability of Medical Malpractice Insurance protection.

The good news is that most Medical Malpractice Insurance providers are capable of expanding coverage beyond the territory and jurisdiction of Singapore.

With a few straightforward amendments, the GP’s policy could be expanded to provide cover for claims wherever the treatment is provided, and in whichever legal jurisdiction the claim is brought.

The bad news is that insurers don’t like giving such cover unless they can be told precisely which countries need to be covered and how many consultations will take place in each (the disruption that is happening in healthcare and many other sectors has not yet reached the world of insurance).

These are questions that are difficult if not impossible to answer with certainty.

The reality is that telemedicine skips over traditional geographic and legal boundaries in the same way that Facebook, Uber, and other technology- based service providers have done. The only truly effective solution for our hapless GP is a Medical Malpractice Insurance policy with a global reach.

Such policies are available but come at a substantial additional cost.

Singapore itself has a relatively benign malpractice litigation environment, but if your policy needs to cover you for consultations in the USA, Canada, Australia or the UK then you can expect to pay for that privilege.

The problems encountered by our GP are simply another outcome of the clash of an industry disruptor (telemedicine) with a traditional provider to that industry (malpractice insurers).

Ultimately, the laws of demand and supply will determine how the healthcare industry will reshape and both regulators and service providers will have to scramble to catch up.

However, as medicine and insurance are both closely regulated professions that operate on centuries-old models the necessary changes may be quite some time coming.

In the meantime, it may not only be the patients who are suffering from headaches.