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“Telehealth has come into focus during the COVID-19 pandemic as physicians face an immediate need to reduce exposure by providing care—or at least triage—remotely when appropriate.
Under usual circumstances, telemedicine is comparatively low risk. That said, telemedicine does bring specific risks to patient safety and physician/practice liability. Minimizing those risks calls for adapting daily practice routines around informed consent, documentation, and other standard components of a patient encounter, as well as adjusting the practice’s insurance coverage.”
David L. Feldman is chief medical officer, The Doctors Company and Healthcare Risk Advisors.
He shares his story and discusses his KevinMD article, “7 tips for telehealth during COVID-19.”
This episode is sponsored by The Nuance Dragon Ambient eXperience (DAX). The Nuance DAX solution makes it possible to forget the tech-toggling and reduces documentation burdens no matter how or where care is being provided.
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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.
Transcript
Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have David Feldman. He is chief medical officer of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. He wrote the KevinMD article “7 tips for telehealth during COVID-19.” David, welcome to the show.
David L. Feldman: Kevin, great to be here. Happy to join you today.
Kevin Pho: So we’ll get into your article in a little bit, but first off, can you share your story and your journey to where you are today?
David L. Feldman: Sure. So, Kevin, I kind of call myself an alternative-career doc. I didn’t plan it this way, but I started as a plastic surgeon 25 or so years ago. I spent 20 years at Maimonides Medical Center in Brooklyn and had a variety of different roles: director of plastic surgery, president of the medical staff. And then I got interested in some administrative positions. I ran the operating rooms there for a number of years, and as a result of that, I got really interested, I should say passionate, about patient safety. That sort of became my thing, and I was the patient safety officer before going to where I am now, as a chief medical officer for a large malpractice insurer.
I’ve been doing this for the last 10 years, and I’ve been able to sort of translate that passion about patient safety into risk management, and really helping colleagues, doctors, nurses, and other health care providers, avoid risk, avoid lawsuits, by practicing better medicine and communicating better, documenting better, and so forth. So it’s been a nice ride.
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Kevin Pho: Now, how is the pandemic affecting the medical liability business?
David L. Feldman: Well, I think we all know that there have been lots of changes over the last six months. Malpractice, obviously, is all state-based; there are some federal protections. Lots of states have passed immunity laws to protect physicians and clinicians from malpractice in these terribly unusual times, where standards have changed dramatically. Some of this stuff is now changing back; we’ll see. There have been delays, obviously, in lawsuits. I’m not the lawsuit expert. I’m sort of on the other side, in the risk management piece. But we know that there probably will be lawsuits; it will be over the next few years, and we’ll see what happens. But our hope is that people will recognize that physicians and clinicians are the heroes they’ve been over the last six or eight months. So that’s what we’re hoping.
Kevin Pho: So let’s get into your KevinMD article, “7 tips for telehealth during COVID-19.” Now, for those who haven’t read your article, can you walk my audience through it and share the story of why you decided to write it?
David L. Feldman: Yeah, so it’s interesting, Kevin. My journey with telehealth began not that long ago. I had this webinar I was going to do in the middle of March, around a whole bunch of other things. I had some conferences, and as you know, in early March, all that went away. But here I am, doing this webinar on telemedicine, on telehealth, and it got me really thinking about how telehealth can really be a positive thing for patient experience.
And I think we all know that the genie is sort of out of the bottle. There’s been so much of this when people were unable to do anything else. I think things are coming back to some sense of normalcy, but we know that we’re not going back to the way it was, where telemedicine was a really small part of a physician practice.
And I think of really the big three: licensing, privacy, and billing. Those are the things that I think most physicians need to think about. We know that licensing is state-based, so it’s really tricky business to figure out. Over the last six months, a lot of those have been relaxed, but they’re not likely to stay that way. We know the privacy issues, HIPAA rules, have been relaxed. I think most of us really believe they shouldn’t be forever. That’s something that physicians really need to pay attention to. We need to be careful about privacy when talking with patients in this modality. And then the billing issues: We’re hoping that those changes will remain, so that it becomes a viable way for physicians to take care of patients, not all the time, but when they think it’s appropriate.
Kevin Pho: So let’s go into more detail. Tell me about some of the privacy issues that can arise from telehealth.
David L. Feldman: Yeah, you know, it’s interesting, Kevin. One of the things that we’ve noticed over the last six months is the increase in concern about cybersecurity. Now, all of a sudden, all these medical visits are online, are available for hackers to try and get into, and it’s really a ripe place for those kinds of folks to look. So we really encourage physicians and others using this modality to be very careful about it, to use secure systems, even to the point of getting cyber insurance to protect yourself and your patients. It’s a really big concern that I wouldn’t have expected, and I’m not a cyber guru, so I wouldn’t expect that either. But it’s something that we really advise our insureds and others to be careful about. You know, make sure you’re protected, and your patients.
Kevin Pho: So I’ve heard different doctors using different platforms for virtual visits. Some are simply just using Zoom, and some are using more physician-patient-centric platforms, like Doxy.me, for instance. Now, tell me, what are the differences between the two from a liability standpoint?
David L. Feldman: Yeah, well, you want to be sure that it’s HIPAA compliant. I don’t know if Zoom is ever compliant. My suspicion is it may or may not be; I don’t know. But you want to make sure it’s super compliant, and there are lots of ways you can sort of do this. The easiest way is to have it embedded in your electronic medical record. The nice part about that is everything is available, everything’s recorded, it becomes part of the EMR. It’s sort of a seamless way of doing it.
Lots of docs will use a separate system and then have their EMR open at the same time, so they can document, look at records and lab values, and so forth, while they’re talking with patients. But you want to make sure that the vendor you’re using, whatever vendor it is, is not only HIPAA compliant, but it also has security protections built in, so that there’s very little chance that you’re going to run the risk of having those kinds of things happen. And people are looking for that. So that would be my suggestion: Check with the provider, the vendor that you’re using, to be sure that it complies with all those things. It’s critical.
Kevin Pho: So you also mentioned billing as a potential red flag. Can you go into more detail on that?
David L. Feldman: Yeah, so we know that Medicare has changed its rules. It used to be very restrictive, really focused mostly on rural health, which is certainly important, but we now know that all kinds of patients really want to take advantage of this. So do physicians. There shouldn’t really be any differentiation about where the patient or the physician is. And the billing ought to be, well, we talk about parity and equity. I don’t think there are certain things we can’t do, obviously, via telemedicine, and it’s not appropriate to bill for something we’re not doing, but we should be paid equitably, right? So being paid in a way that makes sense for the time it takes.
I’ve heard some physicians say that, in some ways, it takes them longer to do the telehealth visits. It’s more preparation; the workflow is very different. And I think it’s important that the folks in Medicare and other payers realize that physicians ought to be paid for the work it takes to deliver this kind of care, and there are so many potential benefits that it’s really worth doing that.
Kevin Pho: So I know the liability impact of telehealth isn’t going to take effect until probably next year, but have you heard any anecdotes or anything through the grapevine of what physicians should not be doing?
David L. Feldman: Yeah, so I think, look, we at The Doctors Company, our mission is to advance, protect, and reward the practice of good medicine. If I had to say one thing to docs doing this: Practice good medicine. There are lots of situations where your instinct tells you, “This is probably not the kind of thing I want to do virtually,” and then you really want to encourage your patients to come in or to go to an ER, whatever it takes to do that. That will reduce a lot of your risk.
The few lawsuits we’ve had in the past, when telemedicine really wasn’t so common, were typically around diagnostic errors, and if you think about it, it sort of makes sense. So you want to be wary of those kinds of things, and of getting yourself in a situation where you might miss something, and just revert to a typical in-person visit. And I think patients will appreciate that, especially if you try first to have the virtual visit, and then you get to the point where, “You know, I’m just not comfortable continuing this. I’d really like you to come into my office, or if it’s something more urgent, to an urgent care or an ER,” to avoid having those issues come up. But I think that’s just using good common sense, and practicing good medicine is probably my best advice.
Kevin Pho: On this podcast, I’ve talked to a lot of psychiatrists in particular who practice telemedicine. Are there any pitfalls that psychiatrists should be aware of?
David L. Feldman: Yeah, I think that’s a great point. We know there’s a huge number of telemedicine visits happening with behavioral health. It makes a lot of sense, right? There is no physical exam. But here again, you’ve got to have your antenna up. Even though in a virtual visit you can see a patient and you can hear them, we still miss something. We miss some of that sixth sense. And I’m not a psychiatrist, so I wouldn’t pretend to be one, but I would say, use your sixth sense, and if you have the feeling that that patient’s in trouble, that’s when you want to take action, whatever that means. Again, it’s referring that patient to an extra level of care, the kinds of things that you can’t do virtually, that a psychiatrist might be able to have a sense for if they’re doing something in person. So that’s my advice. Again, it’s the same thing of using your best judgment on what you think is the right situation and what isn’t.
Kevin Pho: We’re talking to David Feldman. He is the chief medical officer of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. David, can you look into your crystal ball and tell me, in the next 6-12 months, where do you envision telemedicine going?
David L. Feldman: I think it’s an exciting time. I think it’s a great way to be patient-centric, especially for patients with chronic disease. Think about all the remote monitoring we can do if we can get patients blood pressure cuffs and diabetes blood sugar measurements at home that they can send in. All the wearables that we have can provide huge amounts of information for physicians to help patients with chronic illnesses.
But I’m particularly interested in the technology. There’s all sorts of new technology out that allows physicians to do what we typically think of as traditional exams remotely: remote otoscopes. Ultrasound is ubiquitous now; as we know, it can connect to a phone. And being able to do an ultrasound examination remotely gives physicians incredible amounts of information without having to have the patients come in, which during a pandemic is great. But even afterwards, think about the convenience for patients.
The idea of a waiting room always kind of offended me, right? Patients in a waiting room, you’re sort of giving them the message, “Have a seat. You’re going to be here for a while.” If a patient’s at home waiting, it’s not such a big deal. They can do what they need to do. They can be reading or taking care of other things while they’re waiting for the physician to come on. So I think the technology is going to really explode in this space.
As a malpractice insurer, I’m particularly fascinated with the idea of audiovisual recordings of a medical visit. And imagine having so many of these things that machines can actually generate a chart, and now the doctors and nurses doing these kinds of visits don’t have to worry about documenting anything. It’s all done for them. And in a way, for us in malpractice, it says, “This is exactly what happened. There’s no question,” right? So it makes it easier to defend when doctors and nurses do the right thing. So to me, that’s the most exciting part of this. Six to 12 months, I don’t know, Kevin, but I’m hoping in the near future those things will be available. It really will be a great thing for patients and their physicians.
Kevin Pho: From a liability standpoint, can you share your top two tips that every clinician listening to this podcast should know?
David L. Feldman: Yeah, I would make sure that you’re aware of cybersecurity, using compliance software, so that you’re reducing the risk of that happening. And then, honestly, using your best judgment. Look, telemedicine’s only a tool in our toolbox. Don’t be lured into the fact that everybody should be done with a telemedicine visit. Use it appropriately, and you’ll keep yourself out of trouble.
Kevin Pho: And my final question: Do you have a take-home message that you want to share with the KevinMD audience?
David L. Feldman: I’ve talked to some of my colleagues. This is not going away. I think every physician now wants to be taking a hard look. And I’m a plastic surgeon; we don’t typically think of telemedicine, remote plastic surgery visits, but there are plenty of opportunities to do that, even for a plastic surgeon. We’re a visual specialty. As I said, even I, though I’m not practicing, am still getting videos and pictures from friends, “This patient needs stitches,” that kind of thing. So we all do this, whether we know it or not. I think we should embrace it, make sure we’re protected, and figure out what’s the impact on your practice, where you can incorporate this and where you can’t, what the issues will be for billing, and so forth. I just think it’s a great opportunity, and I would encourage all of our colleagues to embrace this new way of helping to treat patients.
Kevin Pho: David, thank you so much for your time and insight, and thanks again for being on the show.
David L. Feldman: Kevin, it was a pleasure, and have a great day.
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