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COVID-19 and Its Impact on Medical Professional Liability: First Impressions

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COVID-19 and Its Impact on Medical Professional Liability: First Impressions HOW WILL COVID-19 COVID-19 AND ITS IMPACT INSURANCE IMPACT ON MEDICAL AGENTS/ BROKERS PROFESSIONAL E&O; MINIMIZING LIABILITY: FIRST EXPOSURE DURING IMPRESSIONS AND AFTER THE PANDEMIC 2020 D&O SYMPOSIUM Vol.XXXIX | Second Quarter 2020 CONTENTS 3 Building Momentum with Robbie Thompson 4 How will COVID-19 Impact Insurance Agents/ Brokers E&O; Minimizing Exposure During and After the Pandemic 7 PLUS University 8 Bitcoin Insurance? The Emerging Market for Digital Asset Insurance 16 Disasters, Catastrophic Events and Pandemic: Identifying and Understanding the Agent/Broker E&O Risks, and Preparing to Defend the Coming Wave of E&O Claims 24 PLUS RPLU Designation: Online eLearning 26 Why Not Record It?: Legal Considerations for Recording Agency Phone Calls 28 COVID-19 and its Impact on Medical Professional Liability: First Impressions 38 PLUS Board & Awards Call for Nominations BUILDING MOMENTUM with Robbie Thompson CEO At first it was hard writing this quarterly column under the heading of “Building Momentum”. PLUS was building overwhelming momentum and having its most successful first quarter in recent memory. The D&O Symposium had its highest attendance and sponsorship support in three years, and the evaluations were easily some of the strongest we’ve seen. The same can be said for the Cyber Symposium—it was the largest in the history of PLUS with excellent content. The content planned for a re-imaged Healthcare Symposium was fantastic and attendance was trending ahead of previous years. Chapters were heading into another successful year with great events planned, sponsorship levels up, and passionate leadership. PLUS sent renewal notices in the first quarter to the highest number of members it has ever had. The RPLU modules that have been converted to virtual were being ordered at a higher rate than ever with more accessed by members in first quarter 2020 than in 2019 in total. And the PLUS Board had just adopted an amazing visioning plan through to 2023 that we were just getting started on. That is surely momentum. Clearly, it was building. Then the COVID-19 crisis hit. And it seemed like for a moment, the momentum stopped – or at least slowed. Staff and volunteers went from planning events to moving dates and renegotiating contracts. As they should, members were concentrating at taking care of their families, clients, and getting adjusted to new work environments, and thus membership renewal slowed (it has since picked up and PLUS extended the renewal date to May 15). We had to cancel the in-person Healthcare & Medical PL (HMPL) Symposium and all Chapter events at least through July. We are moving our in-person PLUS Universities to virtual as we did with Cyber University. And the PLUS staff, like most members, had to shift to working from home (luckily, we were already prepared for that) and meeting with volunteers virtually. So, yes, momentum surely slowed. That could have been that. But we felt like this is the time members need PLUS most: a time to rise up and unite more than ever. The staff and volunteers at PLUS pushed through the slowed momentum to build new momentum. We moved Cyber U to virtual and ended up serving more people than the last two Cyber U’s combined. We moved HMPL to virtual and had more people view the virtual sessions then have been at an in-person HMPL Symposium in many years. We are converting PLUS University to provide for an amazing virtual experience that puts attendees well on the path to their RPLU. We are converting curriculum modules to virtual modules even faster and are putting all exams for non-virtual modules online so people can get their RPLU completely online. We have held almost a dozen COVID-19 related webinars and podcasts to quickly get relevant information to members. The EPLI COVID-19 webinar was by far our largest ever with more than 1,200 people registered. We are diverting more resources to plan webinar series on management liability, reinsurance, brokering, claims, and of course hot topic webinars on cyber, D&O, healthcare and more. And chapters are finding unique ways to deliver content and networking from a distance. Now that I reflect on it, PLUS is still building momentum. It is still serving its members, meeting expectations, and uniting the industry. It is adapting to build that momentum differently, but it is still building, and we promise to continue to do so. Thank you for being a part of this continued momentum building, and on behalf of all the PLUS staff and the PLUS Board, please be safe and stay healthy. Q1 2020 PLUS Journal | 3 HOW WILL COVID-19 IMPACT INSURANCE AGENTS/ BROKERS E&O; MINIMIZING EXPOSURE DURING AND AFTER THE PANDEMIC 01 BY: MICHELLE M. ARBITRIO 4 | Q1 2020 PLUS Journal Although health care workers have been the primary focus and could result in economic devastation for insurance of anticipated litigation that will result from COVID-19, companies. Specifically, a broad mandate is unviable the tentacles of pandemic litigation are now starting to in cases where COVID losses clearly are not covered permeate tangential players and coverages. Presently, the pursuant to the plain language of the policy, and where insurance industry is seeing an onslaught of business the carrier has not underwritten for the potential losses. interruption claims, as businesses slow down or shut down In such situations, the legislative action fails to account as a result of various permutations of “shelter-in-place” for the business model that underlies the insurance orders throughout the country and the world. There are process, i.e. that the insureds have not paid the premium early indications that, if and when carriers deny coverage to fund the risk that the carrier never intended to cover. for COVID-related claims, insurance agents and brokers will emerge as another “deep pocket” that businesses can Assuming that business interruption and related target to attempt to recover COVID-19 losses. Industry COVID-19 losses will not be entirely covered by insiders are speculating that insurance agents and brokers insurance carriers, either pursuant to policy language or errors and omissions claims will be a part of the next legal mandate of coverage, the next wave of litigation wave of COVID-19 lawsuits to rock the industry. It is will likely target insurance agents and brokers for anticipated that claimants will generally allege that the failure to procure necessary coverage. It is anticipated agent or broker failed to procure appropriate coverage for that there will be a brief delay in the filing of insurance a panoply of COVID-related losses. agents errors and omissions lawsuits, because the tail on insurance agent and broker errors and omissions is Insurance carriers who underwrite high volumes of longer than the underlying coverages (i.e. there is usually errors and omissions policies are watching closely as an initial denial of coverage before parties pursue their this situation unfolds, because legislative action may insurance agent or broker for errors and omissions). change the potential liability risks for insurance agents It is anticipated that plaintiffs will base claims against and brokers. As of the date of publication of this article, insurance agents and brokers on alleged failure to government officials have discussed the possibility of procure business interruption coverage for losses related implementing drastic measures to remedy the massive to viral outbreaks and government ordered shutdowns nation-wide business losses, including mandating that related to viral outbreaks. Insurance agents and brokers carriers provide insurance coverage for COVID-related will likely posit an array of defenses including but not losses that would not otherwise warrant coverage limited to arguing that the insureds did not request pursuant to the policy language. this type of coverage; that this type of loss was neither anticipated nor foreseeable; that it was not the industry A broad, sweeping mandate for coverage has the standard for insurance agents and brokers to recommend unprecedented potential to disrupt the delicate fiscal and/or procure business interruption insurance for viral balance of the insurance carrier’s business model, but outbreaks and government shutdowns related to same; could serve to absolve insurance agents and brokers and that, in any event, this type of coverage was not of liability risk related to these claims. The business of readily available. insurance is predicated upon an underwriting process that includes assessing risk, ascribing cost to the risk With claims against insurance agents and brokers at issue, drafting fine-tuned policy language outlining are likely imminent, insurance agents and brokers the parameters of the specific risk, estimating the are receiving a voluminous influx of questions from premium necessary to fund the risk class, and dividing insureds regarding various losses incurred in connection the estimated premium among the class of insureds for with the COVID-19 crisis. The current insurance the particular risk. Insurance companies are taking the environment is unpredictable, especially as it relates to position that a governmental mandate of coverage for legislative changes in different states regarding mandated COVID-19 losses is not a viable solution for this issue, coverage. If carriers deny coverage for some COVID-19 Q1 2020 PLUS Journal | 5 claims, insureds may turn to insurance agents to recoup In sum, insurance agents and brokers should stay uncovered losses. For this reason, insurance agents and connected to their insureds and industry partners, brokers need to diligently follow industry best practices and continue to carefully execute risk management during this busy and stressful time, to best serve their behaviors such as documenting communications and clients and to protect themselves against potential errors reporting claims to the carrier, to avoid errors and and omissions claims.
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