James R. Embrey, Jr. is a Partner at Hall Booth Smith, P.C. who defends Fortune 500 companies and other businesses of all sizes in medical malpractice litigation, general liability, insurance coverage and transportation matters. He previously worked in-house as a Managing Counsel and General Counsel, and earlier in his career he served as an Airborne Infantryman in the United States Army with the 101st Airborne Division (Air Assault) and was awarded the Combat Infantryman’s Badge for his service in the Middle East. He can be reached at

Telemedicine and Telehealth (T&T) services were already on the rise before the COVID-19 pandemic, and demand has soared since the shutdown as patients and providers alike recognized the efficiencies and convenience of delivering care remotely.

Some of the increase in demand is due to plain old necessity among populations who couldn’t easily attend appointments in person. People with mobility challenges, who were under quarantine because of possible COVID-19 exposure, who have underlying health issues that put them at higher risk for serious complications from COVID-19, or whose family demands and virtual school responsibilities made in-person appointments difficult have been able to still receive clinical care through telemedicine appointments.

Patients seeking care for routine health visits also embraced the ease of meeting with a doctor via videoconference, while others managing chronic conditions such as diabetes or high blood pressure saw the convenience of doing regular check-ins remotely.

10 Customer Service Habits for Your Medical Practice

Telehealth also rose in popularity as providers turned to virtual platforms for patient monitoring, education, biohealth screenings, and other wellness offerings.

Along with the surge in demand for T&T care also comes higher risk of malpractice claims for health care professionals.

One of the biggest risks is the act of practicing medicine virtually and the challenges of virtual examinations, reviewing diagnostics, communicating with the patient, loss of contextual clues, etc.

Two-thirds of telemedicine-related claims received between 2014-2018 were related to diagnosis, 

Unlike an in-person clinical visit, physicians conducting a telemedicine appointment must rely on a patient’s description and interpretation of their symptoms to try to make a diagnosis without the benefit of testing and hands-on physical examination.

That could more easily lead to misdiagnosis, missed symptoms or physical clues about the patient’s condition, prescription of the wrong medication, and the potential consequence of prescribing medication across state lines without conducting an in-person examination (a criminal offense in some states).

Privacy breaches, software malfunctions, cyber security threats, ransomware, and other issues could result in noncompliance with federal and state regulations.

Something as simple as a poor internet connection or an older computer with a low-quality camera lens could also play a role in misdiagnosis or miscommunication between patient and provider.

Despite these risks, the standard of care test remains the same for virtual medicine: acceptable medical treatment provided by reasonably prudent health care professionals under like or similar circumstances.

Providers who choose to offer T&T care can reduce their risk by implementing best practices and recommendations from the 

, and working with attorneys who are experienced in medical malpractice defense to develop policies and procedures for following those guidelines.

They should be vigilant about patient confidentiality, including written documentation, and ensure their software platforms have encryption, cybersecurity, and other safeguards that comply with federal and state privacy laws such as HIPAA and HITECH.

Providers should educate patients on the proper protocols of T&T visits and describe the possible risks of seeking care remotely. They also need to be mindful that there will be an inherent lack of personal connection and continuity of care that tends to reduce the risk of litigation in longstanding doctor-patient relationships.

Physicians may need to be more vigilant in making sure patients follow through on diagnostic testing such as blood work or radiology, prescription medications, other recommended treatment or specialized care.

7 Financial Reports Your Practice Needs to Run

When In Doubt, Insist on an In-Person Visit

Most importantly, when a virtual visit isn’t yielding enough information — especially when the patient may have a serious illness or condition, or a history of underlying health issues that may cause complications — physicians should document the lack of information and insist on an in-person appointment for a more detailed examination or diagnosis.

Telemedicine offers many new opportunities and potential benefits for both patients and physicians in our increasingly complex health care environment.

Medical providers must stay alert to the possible risks of litigation, especially when making a new diagnosis or when presented with a new symptom or health concern.

Work with experienced medical malpractice counsel to create policies and procedures that adhere to guidelines from the American Telemedicine Association, and vigilantly follow best practices.

Remember that T&T care is still in its infancy, and we have much to learn.

James R. Embrey, Jr. is a Partner at Hall Booth Smith, P.C., and he defends Fortune 500 companies and other businesses of all sizes in medical malpractice litigation, general liability, insurance coverage and transportation matters. He previously worked in-house as a Managing Counsel and General Counsel, and earlier in his career he served as an Airborne Infantryman in the United States Army with the 101st Airborne Division (Air Assault) and was awarded the Combat Infantryman’s Badge for his service in the Middle East.

Articles

Telemedicine and telehealth litigation risk rises as demand soars

Joe Nicholson, DO; chief medical officer of CareAllies discusses how value-based care strategies can reduce administrative burdens, improve customer service and the patient experience.

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How value-based care strategies can reduce administrative burdens, improve customer service and the patient experience.

Benefits of engaging with value-based care

Bret Larsen is a Virtual Care Strategist, CEO and Co-Founder of 

, where he and his dedicated team are helping HCOs innovate in today’s rapidly changing healthcare industry. eVisit is powering hundreds of thousands of virtual visits, connecting providers and patients within its HIPAA-compliant eVisit Virtual Care platform, enabling providers to deliver efficient and effective patient care. eVisit is a Representative Vendor in the 

Gartner 2020 Market Guide for Virtual Care Solutions

Forrester Wave: Virtual Care Platforms for Digital Health, Q1, 2021

Most healthcare leaders, providers, and practice groups smartly jumped into offering telehealth with video vists when the coronavirus pandemic hit the U.S. last March.

This was a solid move. These healthcare professionals knew serving the needs of patients was paramount; with the regulatory barriers lifted, two-way video conferencing quickly met the immediate requirements to safely engage and deliver patient care.

Now, after millions of video visits executed across the U.S. by providers and staff, there is a realization of the disparity between video visits and Virtual Care. There is a difference—video visits were a quick-fix solution and now many are likely experiencing the need to pivot toward a longer-term Virtual Care strategy and technology partner.

Healthcare providers are thinking more strategically now that the first wave of COVID-19 is behind them. According to Gartner, a research firm, in its recent 

, healthcare providers are moving from initial disjointed solutions to a long-term, enterprise-wide strategy. Gartner also cautions to be mindful that the market is currently highly fragmented and there is great variation in terms of solution capabilities and cost.

Asset Protection: Malpractice risk by the numbers

“Attempting to retrofit an existing solution to a new use case may not be the cheapest, or most effective option,” say Gartner analysts in its report.1

Here are some key take-aways from our work with medical practices of all sizes: 

Everybody talks about Virtual Care similarly, but they use different terms such as “video visit”, “remote care”, “telemedicine”, “telehealth”, “digital health”, and “mhealth”, among others.

Whatever you might call it, it’s here to stay and everybody wants to do it more effectively. 

Medical practices all have distinct goals, processes, workflows, and organizations.

You may have ignited telehealth with video conferencing and subseqently learned that’s not working.

In one of our consults, we learned of a hospital system that was conducting 7,000+ video visits per month. They quickly learned what they needed: an efficient end-to-end solution that virtualizes every aspect of the clinical workflow from scheduling and intake, the remote visit itself, to eprescribe, discharge, and payment.

The above graphic details the significant disparity, especially the many friction points providers and staff encounter as they marry the myriad “non-virtualized” physical steps with the many team members it takes to conduct a single video visit for just one patient.

These non-virtualized steps actually take more practice staff—as many as eight people—to navigate and transact the video visit process. With video visits, there are multiple software and interfaces in play including the practice management suite; Electronic Health Record system; two-way video system, and the many team members who are phoning, emailing, texting, diagnosing, adjudicating, billing, charting, and prescribing.

Tailoring your practice’s RCM to changing times

Our analyses show that using an end-to-end solution saves time and labor costs and delivers a higher gross margin/visit as high as 75%.

That there is a difference between video visits and Virtual Care is one of the top lessons learned by practices during the pandemic. As you think through post-pandemic Virtual Care strategies, especially improving your capabilities to boost revenue and to serve expanding patient demand, consider this cost analysis.

1. Gartner, “Market Guide for Virtual Care Solutions,” 26 October 2020, Sharon Hakkennes, Pooja Singh

Gartner does not endorse any vendor, product or service depicted in our research publications, and does not advise technology users to select only those vendors with the highest ratings or other designation. Gartner research publications consist of the opinions of Gartner's research organization and should not be construed as statements of fact.

The difference lies in more than just the name. 

Video Visits versus Virtual Care

Joe Nicholson, DO; chief medical officer of CareAllies discusses how the provider experience is altered in a value-based care strategy.

How the provider experience is altered in a value-based care strategy. 

Value-based care provider experience at the individual level

Within the nearly 1,750 pages of the 2022 Medicare Physician Fee Schedule proposed rule were many significant policies that, if approved, could greatly affect practices. One particular subject that has largely flown under the radar concerns remote therapeutic monitoring (RTM). This emerging concept should be of interest to organizations with current or future plans to implement telehealth and/or remote patient monitoring (RPM) programs.

, issued July 13, greatly expanded what was known and understood about RTM but still left many questions unanswered. We hope and expect these questions will be answered in the coming months as RTM transitions from an undefined service to one that practices may want to offer patients.

To help you get up to speed on RTM, here are eight things to know.

Remote Therapeutic Monitoring’s Debut: What you should know (for now)

Feedback on the 2022 Medicare Physician Fee Schedule proposed rule must be submitted by 5:00 p.m. ET on Sept. 13, 2021.

, a healthcare software company that simplifies the provision of preventive medical services, chronic care management and remote patient management. Daniel is also a practicing healthcare attorney specializing in regulatory compliance, reimbursement, scope of practice, and patient care issues.

Slideshows

The proposed rule, issued July 13, greatly expanded what was known and understood about RTM but still left many questions unanswered.

. Founded in 2014, WCH develops innovative cloud-based software solutions that enable healthcare providers to remotely monitor the health of patients managing chronic illnesses.

Nearly 5 million Americans are living with heart failure with an estimated 550,000 new cases diagnosed each year. Heart failure is 

responsible for 11 million physician visits each year

, more hospitalizations than all forms of cancer combined, and contributes to approximately 287,000 deaths each year.

Advances in remote monitoring are allowing for physician practices to further monitor heart failure patients on a regular basis, without the patients needing to leave their home. This real-time data provides seamless connectivity, improved clinical outcomes, and reductions of adverse events.

While remote monitoring has been in place for many years, it began to flourish in 2019-2020, when CMS finalized 

new reimbursement rules for remote patient monitoring

, paving the way for reimbursement of heart failure remote management. Essentially, these new CPT codes provided for more incentives for physicians and care teams to spend within virtual patient care.

Even though the initial adoption of remote monitoring had been slow, the interest from physicians significantly took off since the recent pandemic as practices began to seek more efficient and innovative ways to manage high-risk patients while they are away from the clinic.

Cultural competency can improve healthcare for all

This shift in mindset toward close daily monitoring, particularly of heart failure patients, helps visualize dangerous trends and prevents disruptions of care plans. Remote monitoring allows practices to better allocate limited resources, such as staff time. By doing so, providers are able to better focus their time on higher acuity matters.


“It’s important to be able to monitor heart failure in patients so we know what’s going on in real-time, which will allow us to reduce hospitalizations and costly readmissions,” said 

, an international leader in the research and treatment of heart failure and founding member of the 

. “This is the only way we’ll be able to deliver effective treatment that helps slow the progression of heart disease and leads to better outcomes for patients, and providers,”

Real-time remote monitoring delivers more accurate data and immediate connectivity to healthcare providers. Prior to remote monitoring, care teams relied on patient diaries to track historical information. While this type of data was useful for showing historical trends, it was often working backwards and did not provide timely and actionable information for care teams to help patients remain in stable situations.

With remote monitoring, care teams are able to see a “daily diary” of their patients and make decisions that improve care and prevent adverse events in real time. Heart failure patients that are monitored remotely typically see improved quality of life and reduced hospitalizations.

“Heart failure is an ongoing epidemic. Remote patient monitoring focuses on preventative care. It allows us to identify any missed opportunities with the care plan,” said Silver.

As practices and hospitals are measured on quality metrics, remote monitoring provides a valuable resource within the heart failure space. For the majority of organizations, studies have shown that 

remote monitoring can deliver a sizeable improvement in both quality and cost benefit

. In addition, remote data is beneficial in providing health professionals with large-scale insight on how to better care for a multitude of patients.


“We have incorporated remote patient monitoring as a key management tool for reducing hospitalizations and readmissions. Remote monitoring allows us to deliver optimal therapies for our patients,” said Rachel Robinson, director of quality and risk management for 

“Recently we enrolled 450 of our patients in a 30-60-90 day study to evaluate the impact remote monitoring platforms have on reducing hospitalizations in our current standard of care for heart failure,” said Robinson. “Preliminary study results show great improvements in readmission and hospitalization reductions, as well as increased use of optimized and guideline-directed therapies for treatment.”

As physician practices continue to become more receptive of remote monitoring tools, heart failure patients will as well. With remote monitoring, patients are able to remain very engaged, stay connected with their providers, and have a personal opportunity to share data from their perspective.

“It’s nice to have someone else interested in what you’re doing,” said William Wheeler, an eighty-one-year-old heart failure patient from Freemont, IA, who has received care from the Iowa Heart Center. “They can tell by looking if things are out of range. I have had a couple of times where my numbers didn’t look good. They reported to the doctor, and the doctor called right away and made some changes. That wouldn’t have happened without the remote monitoring from my physician."

In addition to increased patient engagement, remote monitoring is shown to improve motivation and education, as well as adherence to guidelines. Having heart failure patients more involved in their care is a 

While there are numerous benefits to remote monitoring, challenges still remain in achieving widespread industry adoption. Practices that are seen as early adopters and innovative thought leaders in the treatment of heart failure, are typically more willing to adopt remote monitoring care. Organizations like Iowa Heart Center have adopted and are scaling remote patient monitoring for heart failure and other high-risk patients.

"Getting providers to change the way they care for patients is hard. We need a new standard of care for remote patient monitoring that’s focused on evidence-based practice to drive adoptions" said Dr. Silver

Advances in remote monitoring are allowing for physician practices to further monitor heart failure patients on a regular basis, without the patients needing to leave their home. This real-time data provides seamless connectivity, improved clinical outcomes and reductions of adverse events.

Remote monitoring a valuable tool for reducing heart failure readmissions and hospitalizations

Ronen Lavi, the co-founder and CEO of Navina, brings advanced AI and machine learning innovation - along with a mission to revolutionize digital medicine and patient care, to his start-up. He is most proud of his family and the national security president award he earned for his essential work when leading the AI lab of the Israeli military intelligence.

How often do patients ponder—and worry about—the emotional condition of their physicians? Rarely, if ever. After all, when a patient is sitting across the desk from a physician, or having a conversation in an examining room, most people are hyper-focused on themselves.

The world understandably rotates around each individual’s own needs, fears, and anxieties. Everything about the physician’s office setting elevates him or her to a figure of authority, thus deflecting patient consideration of their physician’s state-of-mind. In this regard, I was intrigued to read that a research study, published in the 

, found that 76 percent of those surveyed preferred their doctors to be garbed in white coats, versus just 8.8 percent in business dress, with casual dress coming at just 4.7 percent. 

Although patients aren’t always focused on the emotional status of their physicians, medical institutions—in fact all of society—should be. Underneath this formidable display of authority and confidence lurks the dangerous and toxic burnout crisis, 

 and categorized by the under-appreciated Herbert Freudenberger back in 1974.

There are many descriptions for the condition, but this one from a paper published in the 

“Physician burnout, a work‐related syndrome involving emotional exhaustion, depersonalization and a sense of reduced personal accomplishment is prevalent Internationally.”

Resubmitting claims: Get it right the second time

Just like children tend not to know what their parents are going through, patients are similarly in the dark; yet, the burnout issue has been well-documented over the years, long before the COVID-19 pandemic and its extraordinary demands. A recent, longitudinal 

 found that “50% of physicians in the United States experience burnout, now considered by many experts to be an epidemic.” The paper adds that “Burnout rates are higher for physicians engaged in the front lines of care, including family medicine.”

Ironically, broad-scale EHR adoption—which is a positive trend—is having an accelerative role; the JAMA piece goes on to note that: “The higher burnout rate documented in 2017 may be consequent to the implementation of a new electronic health record (EHR) across the institution.” Since then, EHRs have achieved even broader proliferation. A recent “Ideas and Opinions” piece in The Annals of Internal Medicine by medical doctors N. Lance Downing, David W. Bates, and Christopher A. Longhurst points out that while burnout is multifactorial, the physician’s interaction with electronic health records (EHRs) is especially important. The reality of what is called “desktop medicine”, which forces physicians to spend as much time with their computers as with their patients, must be reckoned with.

, reporting on EMR time among outpatient physicians, reported that 33 percent of critical EMR time is spent on chart review. This is a situation that we don’t have to accept as inevitable. 

 supports the need for innovation. In a report published last month they recognize that given the volume and breadth of necessary data to inform care, automated tools are needed to make sense of data, identify clinically important data, and improve care. More than any specialty, primary care needs for this information aggregation and analysis to be automated. The current digital health environment makes this an impossible task.

The report also urges innovation in artificial intelligence to parse relevant data, understand implications and interrelationships of data, and aid decision making and health promotion. I couldn’t agree more, as artificial intelligence and machine learning is currently available that can dramatically reduce the mental pressure that results from scattered data that resists the quick assessment physicians must make.

It’s important to note that this chart review crisis is different from the stress of documentation and administrative work, which is why it can't be fixed by hiring more people. They can reduce the documentation struggle, but non-physicians can’t relieve the cognitive struggle. Only doctors can connect the dots, reviewing medical histories, lab results, consult notes, and all the other critical signals that trigger conclusions and next steps. What’s more, chart inflation will only continue as the volume of data from wearables, chatbots, and other inputs are unstoppable. Cognitive burden meets digestion blockage! Only AI can cure it.

CMS 2021 Final Rule: What practices can do

Make no mistake, the ability of EHRs to replace time-consuming, often accurate, and unshareable paper documentation with digital platforms is an extraordinary innovation. But it’s just one step; the history of technology, at its best, is when innovations build productively on each other, bettering the world in that process.

This ever-increasing ability of technology to unlock the full potential of data at the point of care is an essential “burnout buster” that will reduce missed diagnosis and care gaps, increase quality compliance, create a more meaningful physician-patient relationship, and will ultimately improve the overall quality of care. Its arrival is not a moment too soon.

Doctors are human beings. Excessive demands on them have profound emotional consequences. The pandemic is only exacerbating that. All of us who support them must do what we can so that these dedicated human beings can help those who reply upon them. Replacing lost hours of “desktop medicine” with meaningful hours of patient medicine is an important step in that direction.

How technology can aid physicians in returning to focusing on patient care.

Innovation should mitigate rising burnout

, chief medical officer of CareAllies discusses why a value-based care model should be adopted instead of a fee-for-service model.

Joe Nicholson, DO; chief medical officer of CareAllies discusses why a value-based care model should be adopted instead of a fee-for-service model. 

Why physicians should adopt a value-for-service model

HIMSS 2021: What to expect this year

Leaders sound off on what they are excited to see at this year's show August 9th-13th. 

 Chattanooga, Tenn.-based digital marketing agency specializing in health care. Full Media offers a full spectrum of HIPAA-compliant digital marketing capabilities within the healthcare space, including website design, online advertising, SEO, patient experience optimization, and analytics.

When you think about HIPAA violations, the blatant sharing of patient information probably comes to mind. You may think about instances where providers have chatted with family members or friends about a patient’s medical condition or cases where one patient overhears another patient’s information while in your office.

While both scenarios describe slips in the confidentiality required under the Health Insurance Portability and Accountability Act, there are many more instances when violations are less obvious. One area where slip-ups are common? Marketing.

When you’re planning out your marketing strategy and how to accomplish it, you likely think about details such as ROI and how to repurpose content in the most meaningful way. But it’s also important to consider whether your marketing content and your marketing strategy are HIPAA-compliant.

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If you feel a little overwhelmed at even the thought of ensuring HIPAA compliance within your marketing efforts, don’t be. You can take some basic steps that will go a long way toward ensuring you accomplish your marketing goals while still maintaining patient privacy.


In the past decade, health information-seeking has largely moved online. That transition sped up during the COVID-19 pandemic, as more people turned to health organization websites to gather information related to health services, COVID-19 precautions, and other health-related essentials.

There’s no doubt that having an effective and meaningful website is an essential for any health organization or practice in today’s world. It’s important to ensure your website is filled with information that meets patients and prospective patients where they are—online. But it’s also important that your website does so in a HIPAA-compliant way.

You probably recognize the fact that when you create content, you must seek patient authorization before sharing any details about their care. That’s a logical place to ensure HIPAA compliance.

Content creation, though, isn’t where most marketing-related HIPAA violations occur. Instead of revealing patient information when content is created, it’s much more likely that patient information is accidentally compromised when content is gathered.

Consider all the places on your website that ask a person to submit information. That could be a contact form, a sign-up form for an event or a tour of the maternity unit, a payment option, or even a chat bot.

In any instance where you’re asking someone to submit information on a healthcare website, even if the person is not identifying as a patient or giving specific information about a medical condition, that information constitutes Protected Health Information (PHI).

Obviously, gathering information related to patients and prospective patients is an essential part of marketing your services and getting those people the care they need. To collect information within the boundaries of HIPAA compliance:

Gain express written consent from the patient

Verify that information is being submitted in a safe and encrypted way.

Identify who will retrieve that information and anyone who could potentially access it.

Ensure that the data is stored in a location or on a server that meets HIPAA standards.

It’s important to recognize that while password protection for PHI is a great first step, it’s not enough to meet the standards for HIPAA compliance. To ensure safety, you should also verify the security of your server with your website host, revoke credentials, and access for anyone who does not have an essential need for the information. You should also implement a system where information is destroyed when it’s no longer needed.

2. Consider the Tools You Use to Gather Data


There’s no doubt about it—data and analytics play a vitally important role in any successful marketing strategy.

Most healthcare marketers use multiple tools to gather meaningful data about patients and prospective patients within their target audience. That opens up multiple avenues where potential HIPAA slip-ups can occur.

Think through the tools your organization uses, including:

Customer relationship management (CRM) tools

Lead tracking tools (e.g., form builders or call tracking systems)

If you’re relying on Google Analytics for data, there’s one safety mechanism already in place; Google aggregates and depersonalizes data sent through the platform. If you upload additional data, such as a customer list, into Google Analytics though, you can run afoul of HIPAA.

When you’re using tools outside of Google, you’ll want to consider the types of information the tool is gathering for your organization and whether that’s considered PHI.

Because the boundaries of HIPAA can easily be blurred, it’s a good idea to choose data tools that are specifically designed for health organizations. Signing a business associate agreement (BAA) with any vendors is also a good way to help cover your bases.

Revenue Cycle Management: Benefits and best practices

3. Think Through Your Lead Generation Efforts


While the other two tips relate directly to tools and the information-gathering process, this one relates to what’s done with that data and information after it’s collected.

Part of our role as healthcare marketers involves providing people with meaningful information about protecting their health, but there’s another key component tied to your efforts: whether or not your marketing content is driving revenue.

To determine whether your marketing strategy is offering a solid return on investment, you must be able to trace the path of those patients. This requires a careful look at the data related to those patients and typically also includes collaboration with others about patient leads.

If you’re working with people outside your health organization to solidify your lead generation efforts, such as a marketing agency, you’re likely sharing a good bit of information with them. Even information you might not think of as PHI, such as a phone number linked to a name, 

That means it’s important to not only ensure your team is well-versed in HIPAA compliance, but that those you work with externally are as well.

The best way to do that? Work with a HIPAA-compliant marketing agency through a business associate agreement, or BAA. This verifies that your marketing partner knows how to properly steward the PHI you’re sharing and ensure private patient information remains private. There’s an added benefit, too: this type of relationship also helps to protect your organization by carefully assigning responsibility and liability for any breaches—accidental or otherwise—that may occur.

Rachael Sauceman is the Head of Strategic Initiatives for

, a Chattanooga, Tenn.-based digital marketing agency specializing in health care. Full Media offers a full spectrum of HIPAA-compliant digital marketing capabilities within the healthcare space, including website design, online advertising, SEO, patient experience optimization, and analytics.

These three efforts are some basic steps that will go a long way toward ensuring you accomplish your marketing goals while still maintaining patient privacy.