Insurance for ketamine-assisted psychotherapy clinicians — Part 1
Part 1: Discover the possible liabilities and necessary coverages for practitioners of this emerging treatment.
Ketamine-assisted psychotherapy (KAP) is a unique and relatively recent form of psychotherapy that shows promising results for individuals diagnosed with a variety of mental health disorders, including treatment-resistant depression, post-traumatic stress disorder, chronic pain and anxiety.
Although ketamine has been approved by the FDA since the 1970s, its use in the psychotherapy arena is relatively recent. It was not until the 2000s that medical professionals noticed an association between ketamine and a reduction in depression and suicidal thoughts, and it is within the past few years that KAP has become part of the conversation on a larger scale.
Practitioners in this emergent field face a number of novel questions, including certain unknowns as to the potential liabilities that could arise from their practicing KAP and the insurance that they might need to protect themselves against any such liabilities.
What types of liability might arise/?
Most KAP practitioners have on their radar the potential that a malpractice suit could be brought against them. The concept of malpractice in the context of health care generally means an alleged act or omission by a health care professional during the treatment of a patient that deviates from accepted norms of practice, i.e., the standard of care. The challenge, of course, with respect to KAP is with respect to the latter component — arriving at an “accepted norm of practice.” The field is fairly undeveloped in that regard.
This uncertainty may make many KAP practitioners uneasy. As KAP continues to become more widely practiced, ascertaining a standard of care will become more possible. In the meantime, KAP providers would do well to have adequate malpractice insurance, which should help them defend themselves in the unfortunate event that a claim or suit is brought against them. Short of a formal lawsuit, a former patient could file a complaint with the relevant state licensing board, and a KAP practitioner will want to have coverage for any sums spent responding to the complaint.
In addition to possible malpractice claims, KAP practitioners should consider other types of risk. What if a patient is at a KAP clinic for a KAP session and slips and falls, suffering injury as a result? What if a former patient claims that a KAP practitioner misled them about the efficacy of KAP and makes a claim against that practitioner based on false advertising? Say a KAP practitioner’s electronic health records (EHR) software suffers a data breach and client files leak. What are the practitioner’s options in that situation?
KAP clinic owners face an additional set of risks. Clinic owners, or other employers, face the risks associated with ownership of any business as well as the risks they already assume as individual practitioners. What if an employee claims discrimination? What if a malpractice suit is brought against an employee and the KAP clinic is sued as well? What if an employee is injured on the job and seeks compensation?
The above scenarios represent only some of the many potential liabilities that a KAP practitioner could face. Risk management is key, as is a robust insurance portfolio and an understanding of what that insurance covers.
What types of coverage should KAP practitioners have?
• Malpractice insurance: Most KAP practitioners already have this type of coverage, sometimes called errors and omissions (E&O) coverage. Their question is likely not whether to have this coverage but more what their malpractice insurance actually covers, particularly whether it covers the novel field of KAP.
Generally speaking, malpractice insurance for KAP practitioners covers a claim or suit brought against that practitioner because of a “professional incident” resulting from the “practice of the profession,” for which the practitioner is covered. This insurance covers not only any money that the practitioner ultimately has to pay to a claimant or plaintiff but also the costs of defending against the claim or lawsuit, which can be substantial even for a lawsuit lacking merit. The amount of coverage will be stated in the insurance policy. Various exclusions exist and are relevant. Some exclusions, such as the exclusion for coverage for workers’ compensation claims, exist because another type of coverage applies to this type of liability. Some other exclusions, like the exclusion for “intentional wrongful acts,” apply more generally across most types of insurance.
Reviewing the actual allegations of any claim or suit will be key to determining whether there is coverage, as will reviewing the specific terms of the insurance policy.
Other questions may arise as well, such as whether the state in which the practitioner practices considers KAP to be part of the “practice of the profession” in that state. And, again, the question of whether the alleged incident deviated from an accepted norm of practice could be challenging to determine, given that KAP is still an emerging field. Those questions are beyond the scope of this post but are an important part of the equation. Consultation with an insurance broker and, potentially, with coverage counsel will help make this determination.
• General liability (GL) or commercial general liability (CGL) insurance: Practitioners should consider incorporating this type of coverage into their portfolios in addition to malpractice insurance. Some malpractice insurers will offer GL coverage as a bundle with their malpractice coverage. Consider, however, whether it is worthwhile to have a separate policy. In particular, malpractice insurers that offer a GL add-on will likely limit their general liability coverage to claims or suits resulting “from a professional incident that arises out of the profession” for which the KAP practitioner is insured. This language again gives rise to thorny issues around whether KAP is considered part of the profession in the state where the practitioner is licensed and practicing. A standalone GL/CGL policy may not have this limitation.
Also relevant to practitioners of KAP, GL/CGL policies tend to cover claims based on “bodily injury” or “personal and advertising injury” brought against the practitioner. Say that a former patient sues a practitioner for emotional distress that they claim occurred because of KAP and that this emotional distress has resulted in migraine headaches, impacting that patient’s ability to work. Although this type of claim likely would be noticed by a malpractice insurer, GL/CGL coverage might also be relevant.
Alternatively, if a former patient claims that a practitioner told them that KAP would relieve them of their depression and that, following KAP, they are still depressed, they could file a lawsuit alleging that the practitioner falsely advertised or otherwise misled them about the efficacy of KAP. Most GL/CGL policies cover “personal and advertising injury,” which is designed to address these types of claims.
GL/CGL policies will also contain exclusions that may apply. GL/CGL policies typically exclude injuries that the insured “expected or intended.” Accordingly, while a negligence claim might be covered, a claim for battery (such as a patient stating that a KAP practitioner touched them while under the influence of ketamine and without their consent) might not be. Even in this scenario, however, depending on the allegations in the lawsuit, an insurer might be obligated to pay for attorneys that the practitioner hires to defend them against the lawsuit. An analysis will be necessary based on the nature of the allegations brought against the practitioner in their entirety and the terms of the specific policy.
Another consideration regarding “bodily injury” is whether purely emotional distress qualifies. For example, say a former patient claims that a KAP practitioner’s work in KAP caused them to suffer PTSD from the experience but does not allege that any physical symptoms resulted from their PTSD. Whether this qualifies as “bodily injury” will depend on the laws of the practitioner’s state.
In California, at least one court has determined that claims of pure emotional distress constitute “bodily injury” because “the nerve centers of the body are a part of the physical system” and when effected there is “a physical injury thereby produced.” Many states, however, will only find “bodily injury” where some physical symptom is said to result from the emotional distress.
Allison Zamani is an associate at Blank Rome.
Opinions expressed here are the author’s own.
Editor’s note: Part two of this series reviews the cyber risks faced by these clinics as well as the policies facility operators should carry.
Related: