How healthtech is changing the claims landscape

This article was originally published in Claims Magazine, January 2024.

Technological advancements in healthtech are revolutionising the healthcare sector, and the claims landscape with it.

Developments are arising in areas such as genomics and precision medicine, robotic-assisted surgery, and wearable digital devices are already enhancing patient wellbeing and care. Last year, the UK Government announced an investment of £21 million in AI technologies across the NHS. With the right checks and balances in place, we will likely reach a point when AI-based decision making will exceed human judgement.

Such advancements are welcome but bring an increased risk of new types of claims.

Our recently published report, ‘Healthtech in the future: the legal ramifications,’ highlights key areas of focus and suggests steps to minimise and mitigate risks.

Genomics and precision medicine

The NHS now has the ability to perform whole genomic sequencing, the world’s first clinical service to routinely offer this. With reported reductions in cost due to new technologies and competition, people anticipate that its use will become more widespread.

Claims could arise where patients have poor outcomes following treatment based on doctors’ interpretation of their genetic profiles. In clinical negligence claims, practitioners may also employ genetic testing to determine causation. For example, to prove that a claimant who suffers neurological injury due to negligence has a pre-existing or predisposition to neurological impairment.

In addition to scrutinising insurance policies to ensure sufficient coverage, clinicians should also undergo training, including learning how to intervene when they suspect that profiling is incorrect.

Remote and virtual care

Healthcare providers are increasingly utilising remote and virtual care, such as telephone consultations and AI-enabled apps used to triage patients. We wait to see if the uptake in virtual and telemedicine affects notifications and claim volumes.

Alongside mandatory training, providers should also ensure that contracts and licence agreements with the developers/producers of such apps include indemnity for any harm caused due to malfunctions.

Wearable technology

The use of digital devices, known as ‘wearables,’ is on the rise for monitoring patients’ health and fitness, reducing the necessity for routine in-person appointments.

Claims may arise if clinicians fail to accurately interpret data or do not intervene when it shows an imminent risk to health. Training in data analytics and maintenance of devices is therefore vital, as are assurances from manufacturers that they will indemnify providers if devices are defective. The successful operation of the device is to a certain extent dependent on the person wearing it, therefore cases of contributory negligence may be more commonplace.

Robotic-assisted surgery

More than 100 UK hospitals now offer robotic-assisted surgery. Whilst this technology brings both opportunities and benefits, potential for claims to arise exists in this growing area of clinical practice.

Healthcare providers can limit exposure by ensuring that all equipment used is regulated in the UK and regularly reviewing insurance policies and commercial contracts with manufacturers/developers. This is to ensure they will indemnify should technology malfunction.

Capturing and storing data related to any robotics for at least three years (ideally over six) is essential after surgery for potential evidence and disclosure purposes.

Training clinicians and adequately advising patients on the risks of robotic versus conventional surgery will enable them to make informed choices.

Cyber threats

It is not just the potential for malfunction or misinterpretation of data that represents a liability risk. The growing amount of data being captured is also a valuable commodity for cyber criminals, with ransomware and phishing among the most common attacks.

Cyber security measures incorporated into any new devices and systems should become the norm, coupled with robust response plans so any breaches can be addressed swiftly to limit harm.

Comment

Technology is already transforming healthcare. Providers and their insurers must proactively and effectively manage these emerging risks and then enjoy the benefits.

Read other items in Healthcare Brief - March 2024