The Intersection of Liabilities for Digital Health Companies

By Travis Holt

Are you providing a technology platform to improve the way physicians communicate with their patients? Does your website help employees better use their health insurance plan? Does your software analyze post surgical patient data and provide information to reduce the incidents of infection? If so, you’re one of many companies who may be wondering what type of exposure you have to professional liability claims related to a failure of your technology.

Let’s get one thing out of the way quickly, you should assume your general liability policy will provide no coverage for a technology failure or cyber incident. While general liability is intended to cover bodily injury, almost all general liability policies have professional liability and cyber liability exclusions. A failure of your technology is going to be considered a professional or cyber exposure, thus falling into one of those common exclusions.

To better understand your professional liability exposure, you should first ask yourself whether or not you are providing medical advice, administering medical care, or providing any services that require a medical license. If you are, there is likely a medical malpractice exposure that exists. If you are not, we would consider you a technology company with a primary technology professional exposure. Professional liability policies cover you for a failure of professional service you provide to your clients that results in a financial loss. There are frequently bodily injury exclusions on technology professional liability policies so if you’re concerned that your technology could cause bodily injury, you’ll want to secure contingent bodily injury coverage on your professional liability policy.

Once you’ve tackled the professional exposure, all digital health businesses have a cyber liability exposure. Cyber liability policies will cover network security and privacy injury liability associated with a data breach or other covered cyber incident. Cyber liability is also where you would find coverage for HIPAA fines & penalties.

In an ideal world, you’d like a combined professional/cyber policy that would cover all of your exposure but in some cases that is difficult to secure. In the instance you can’t secure all of the coverages on the same policy, securing them with the same carrier is the next best thing. Good luck as you navigate these challenging waters!