Malpractice cover and AI notes: 5 questions

Your AI scribe went live in the spring, the notes are faster, and the one thing nobody mentioned is your malpractice policy. It sits in a drawer, renews in a few months, and you cannot remember whether the application asked about technology. Carriers are starting to publish guidance on AI scribes, but it comes mostly from physician insurers, and we found none written for solo OTs, SLTs or physical therapists. Here are five questions clinicians ask about their carrier and AI notes, with what carriers and counsel have actually said.

A note on sources: carrier and publisher pages could not be opened in this session, so everything below was read as search-result summaries in October 2026. Where a point rests on one summary we say so. Check the original before relying on it.

1. Do I have to tell my malpractice insurer I use an AI scribe?

We found no source that names a universal duty. A Medical Economics piece (July 2026) advises physicians to disclose AI tools to the carrier before a claim ever arises, and its author expects "medical malpractice carriers to start denying coverage when a medical malpractice issue arises where AI has been used." That is a prediction, not a documented carrier practice. Where a duty to disclose exists, it will be written in your own application, renewal questions and policy conditions, which no article can read for you.

So what for you: pull out your last renewal application and look for any question about technology, recording or "material change", then ask your carrier in writing rather than guessing.

2. Does malpractice insurance cover errors in AI-drafted notes?

That is unconfirmed, and the honest answer depends on your policy wording. Insurance trade commentary summarised in our search warns that many professional liability policies may limit cover to services provided by natural persons, and that some insurers have introduced AI exclusions on other lines: a Berkley exclusion aimed at directors and officers, errors and omissions and fiduciary products, and a Hamilton generative AI exclusion for professional liability policies (insurance trade commentary including Rough Notes and Zelle LLP, as summarised in October 2026). We could not read either form, and neither is a therapy policy. The same commentary reports another insurer, Beazley, saying it plans no AI exclusion. We found no AI wording in the HPSO and CNA physical therapy materials visible to us, though the HPSO documentation spotlight does say documentation deficiencies can lead to a professional liability claim or a licence protection matter.

So what for you: the note carries your name whatever tool drafted it, so ask whether a note you reviewed and signed is covered exactly like one you typed.

3. What do malpractice carriers say about AI scribes?

Three carriers have said something public, all aimed at physicians. The Doctors Company published an AI scribe risk checklist that names privacy, consent and documentation-integrity risks, recommends reviewing it annually and advises using the scribe for a draft but not closing the note without reviewing and revising it (The Doctors Company, as summarised in October 2026). MICA recommends obtaining and documenting individual patient consent to the tool (MICA, as summarised in October 2026). A ProAssurance-sponsored piece describes physician review of AI notes as both a patient safety safeguard and a critical line of defense against liability claims, and notes the lack of a single legal framework (Risk & Insurance, sponsored content). None of the three addresses therapy practices, so treat them as the direction of travel, not your carrier's position.

So what for you: the common thread is review every note and document consent, and you can adopt both this week at no cost.

4. Can an AI scribe recording be used against me in a lawsuit?

It may be. ProAssurance has warned that a retained recording will likely be discoverable and may conflict with the signed note, and advises practices to ask whether the vendor stores audio at all (Becker's Hospital Review, as summarised in October 2026). Defense-side commentary from September 2025 tells providers to check each vendor's default retention period, because some products delete audio once the note is drafted and others keep it for years, and identifies deletion after a suit is filed as the main risk, since it invites spoliation claims (Walsworth, For the Defense, September 2025). That commentary also says courts have not squarely addressed this for medical AI. We found no reported decision on point. The consent side is separate: a class action filed in January 2026 against Sutter Health and related entities alleges unauthorised recording by an AI scribe and was at an early stage, with no findings on the merits (Alston & Bird, 2026).

So what for you: find out today whether your vendor keeps audio, for how long, and who can delete it, because that setting decides what exists if a claim arrives.

5. What should I ask my malpractice carrier in writing?

Send one short email to your carrier or broker and keep the reply. Ask five things. First, does the application or any policy condition require me to report an AI documentation tool, and should I do so now? Second, is a claim involving a note I reviewed and signed covered the same way as one I typed, and does the policy or any renewal endorsement carry an AI exclusion? Third, does the carrier have written guidance on patient consent, note review and audio retention for therapy practices? Fourth, if my vendor holds recordings, does the carrier expect a legal hold process once I hear of a possible claim? Fifth, does my cover respond to a complaint about the recording itself, or would that sit under a different policy? The fifth is a question for them, not a claim about what your policy says. We covered the consent mechanics in our guide to scribe consent across states and the vendor contract side in the free AI scribe BAA check.

So what for you: an email takes ten minutes, and a written answer is worth more than any article, including this one.

The call we would make

Frankly, do not switch the scribe off, and do not wait for renewal to ask. The evidence points toward three moves for a one-person practice. Email the carrier with the five questions above. Make a habit of reading and editing every AI draft before you sign it, and record that you did. Choose a vendor setting on audio retention on purpose, and write the decision down next to your consent script. If the carrier says in writing that nothing needs reporting, file the reply with your BAA. If it says something else, you will have found it out before a claim, not during one.

This is general information, not legal or insurance advice. Policy wording, state law and carrier positions vary and change, and the sources above were summarised rather than read in full, so confirm with your carrier, broker or counsel licensed in your state before acting.

Related: AI scribe consent across states  ·  Louisiana's disclosure rule  ·  Free AI scribe BAA check