Avery Hurt

The COVID-19 pandemic has totally upended the practice of medicine. Physicians are having to learn how to manage patients via telemedicine, how to deal with a totally new infection, and how to keep a practice afloat during a time of shuttered waiting rooms and social distancing. Many of these new routines-from telemedicine to navigating decisions relating to COVID-19 itself-pose a variety of potential pitfalls. One particular concern is a possible increase in malpractice claims. Malpractice, however, is likely much less of a threat than it seems at first glance. 

12 ways medical practice staff can help prevent a patient lawsuit

Practicing telemedicine is not, in and of itself, likely to increase your risk of a malpractice suit. According to 

, a physician-owned medical malpractice insurer, telemedicine poses a relatively low risk of malpractice. For the period from 2007 to 2018, their data shows 27,559 closed malpractice claims of which only 38 involved telemedicine. The number of telemedicine claims has increased over the years as use has increased. However, the total number of cases is still low. 

, CMPE, assistant director of association content with the 

 (MGMA), does point out one risk of telemedicine in this particular crisis. “There are two main ways malpractice can occur,” he says, “misdiagnosis and failure to treat. If you think it may be COVID, be sure to look for other things as well.” You don’t want to miss another respiratory condition because you’re too focused on COVID-19. 

In general, malpractice claims increase during economic crises, says Hajde. But there are reasons to think that won’t be the case this time. In fact, 

, MD, JD, professor emeritus of family medicine at the University of Wisconsin-Madison, predicts that there will be a 

One reason, he says, is that visits are down. “People are afraid; they don’t want to enter the health care system.” According to an April poll by the MGMA, 97 percent of member practices have seen a drop in patient volume; for 71 percent of members, that decrease was 50 percent or more. In addition, while emergency departments and ICUs are overwhelmed with COVID-19 patients, admissions are down for other illnesses. 

But perhaps the biggest reason we might see fewer claims is the nature of the crisis itself. It’s difficult to treat COVID-19 because we know so little about it. And that may be the what protects physicians. “A key component of a malpractice claim,” Roberts explains, “is that the provider didn’t provide standard of care. What is the standard of care with COVID-19? We haven’t figured that out yet.” 

There may be some increased liability, once this is all said and done. But Roberts expects that it will be borne mostly by federal and local governments. Meanwhile, the 

 (Coronavirus Aid, Relief, and Economic Security Act) expands Good Samaritan protections for health-care workers who are volunteering to help with the crisis. The 

 (Public Readiness and Emergency Preparedness Act) offers some immunity for physicians using certain medications or therapies to treat, diagnose, or mitigate the spread of COVID-19. 

 claims during this pandemic is the same way you protect yourself during normal times. Make sure you’re there for your patients, one way or another. If you can’t see them in person, make sure you have a reliable way to do televisits. Follow the CDC protocol for COVID-19, and check regularly for updates. This virus is a fast-moving target and the guidelines are changing quickly. And beware treatments not authorized by the FDA. 

Most importantly, says Roberts, “Do the best you can. In the end, the question will be, ‘Did you act responsibly?’ Just practice good medicine and you’ll be fine.”

https://www.thedoctors.com/articles/covid-19-telehealth-resource-center/

https://www.mgma.com/landing-pages/covid-19-resource-center/financial-assistance-and-guidance-for-practices/staying-afloat-as-patient-volumes-and-revenues-dec

https://www.ama-assn.org/practice-management/sustainability/liability-protections-health-care-professionals-during-covid-19

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Practicing medicine is more challenging now than ever, but malpractice claims are probably not a major risk.

Avoiding malpractice claims during the pandemic

It seems like yesterday that tech enthusiasts were complaining that too few physicians were embracing telemedicine, and doctors who did use telemedicine were complaining about how hard it was to get paid for it. That’s just one more thing coronavirus changed in an instant. According to a recent survey by the physician recruiting firm Merritt Hawkins, almost half of all physicians are now treating patients via telemedicine. That’s up from 18 percent in 2018. Meanwhile, CMS is relaxing the rules about what they will pay for. 

If you’re new to practicing virtually, here are some tips for making telemedicine work for you-and getting paid for it. 

The first decision you face once you’ve decided to practice telemedicine is which platform to use. And as it has done with almost every other aspect of life, the coronavirus has changed this, too. The Office for Civil Rights has relaxed some of the HIPAA requirements for telehealth. However, that doesn’t mean anything goes. “CMS is still guarded about platforms to use,” says 

, CPC, CPMA, Senior Industry Advisor with the Medical Group Management Association (MGMA). “You can use Facetime and Facebook Messenger, but you can’t use Tik Tok or Facebook Live. Basically any kind of public facing program is 

Other aspects of HIPAA regulations remain in place. “Even though the use of non-HIPAA compliant platforms has been loosened, HIPAA rules should be followed as closely as possible,” advises Carol Self, coding and compliance strategist with the American Academy of Family Physicians (AAFP). “Medical conversations should take place in a private space, and communication should be patient authorized and patient initiated.” 

It’s also important to keep in mind that these relaxed guidelines are temporary. “You’ll need to use a service that’s HIPAA compliant once the public emergency is over,” says Bradley.

The AAFP does not recommend or endorse any particular platform, but products their members use include 

, eVisit, SimpleVisit, VSee, MEND, and Spruce Health. Both Zoom and Google now have health care platforms as well. The AAFP suggests helpful features to look for when choosing a telemedicine vendor are out-of-office messaging, the ability to schedule appointments, and the ability to queue up patients. Bradley also recommends choosing a platform that can be integrated with your electronic health records system. 

Once you’re up and running with a telemedicine platform, whether it’s an ad hoc solution or something more permanent, you need to make sure you 

. Fortunately, CMS is also loosening restrictions about how much they will pay and what they will pay for. “Medicare previously paid telehealth services at parity, but it was at the lower facility rate,” says Self. “As part of the flexibilities granted during the public health emergency, Medicare will pay telehealth visits at parity using the non-facility rate.”

In addition, CMS is not enforcing the established relationship rule, and services can be provided to Medicare beneficiaries by phone (even without video capability) during this time. 

But in order to get paid at all, you must be sure to use the proper codes. “If you don’t bill with the correct POS [Place of Service], you may not be paid at the same rate as a face-to-face visit,” says 

, Commercial Insurance Strategist with the AAFP.  The codes for these services are typically evaluation and management codes, along with a Place of Service code and any necessary modifiers. 

Getting the codes right is equally important with private payers. “If you use a CPT code a payer doesn’t recognize, you’ll get a denial,” says Cantrell. Despite recent changes, billing for telehealth isn’t that much trickier than billing for any other service as long as you pay attention. “The only likely hiccups,” says 

, CMPE, Assistant Director of Association Content, MGMA, “would be not using the proper modifier or service code and confusing telephone with video visits. Both are allowed now, but they have two different codes.” 

Private payers are generally falling in line with CMS, but there are some variations. The MGMA has a site with links to the major payers’ coronavirus billing policies. You can also check the website 

, an industry trade group, for policies of specific insurers. If your payers aren’t included on these sites, be sure to contact them directly, and stay on top of emails from payers with policy updates. Things are changing quickly these days. 

Coronavirus has pushed the medical community over the cliff into telemedicine, but the fall is not that steep, and CMS is helping to make it a soft landing. 

Telemedicine survey:
	https://www.merritthawkins.com/news-and-insights/media-room/press/-Physician-Practice-Patterns-Changing-as-a-Result-of-COVID-19/

OCR statement re: HIPAA regulations:
	https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html
	https://www.hhs.gov/coronavirus/telehealth/index.html

MGMA payer site:
	https://www.mgma.com/landing-pages/covid-19-resource-center/financial-assistance-and-guidance-for-practices

Relaxed regulations make it easier to practice-and get paid for-telemedicine.

Telemedicine in the time of COVID-19: The Rules Are Changing

Money isn’t everything. When it comes to motivating employees, money may be not be nearly enough. Psychologists are increasingly discovering that money is not the best motivator.

Sure, people have to make enough money to pay their bills. But when it comes to getting them to go the extra mile for the team, it takes more than a good paycheck.

Fortunately, for practice managers, often the best motivators are relatively easy, inexpensive, and often a whole lot of fun. Try a few of these ideas at your practice, and see if your team is more willing to go the extra mile.

It might seem obvious, but many leaders miss it: Know everyone’s name.

“One of the best ways to have a motivated team is when the doctor knows everyone’s name, and says thank you,” says Elizabeth Woodcock, president of Woodcock and Associates, an Atlanta-based physician practice consulting firm.

“Make sure your team is aware of the mission,” says Cristy Good, CMPE, Senior Industry Advisor at MGMA. “When I worked in a pediatric organization, everyone was dedicated to the mission: making kids better.”

When your team is aware of the larger goal that their work is a part of, they’ll feel an investment in the organization and have a reason to work hard to achieve that organization’s goals.

When your employees do a good job, make sure they know that 

 know. “In my experience,” says Good, “nurses, front desk, staff, and back office staff really respond well  to being recognized.” You can acknowledge the work of a team or point out individuals who’ve gone above and beyond. Just make sure they get the memo. Don’t assume they know you value you them

Acknowledging a job well done is most effective when the acknowledgment is specific.

“I spoke with a doctor recently,” Woodcock recalls, “who went to his scheduler and said, ‘Mr. Jones (not his real name), because you were able to get this patient in today, he will not have to go to the hospital. You helped give excellent care.’” This not only recognized the employee for his work, it recognized his role in the organization and its mission. “This is very powerful,” says Woodcock.

It’s great to be recognized by the boss, but Good points out that the practice shouldn’t stop at the top. “Encourage employees to recognize, thank, and support each other,” she says. “Build that culture of support and kindness.”

“Work culture is important,” says Woodcock. “People want to work at a place that’s fun.” It’s easier than you might thing to make your practice a fun place to work. Good suggests offering simple amenities at work, such as free snacks and pleasant break rooms. Holiday parties are also a great way to build a nice office culture, Good says.

Woodcock suggests things like participating in charity events as an office, having a crazy sweater day, or a dinner swap. “I love this one,” says Woodcock. “Everyone brings a favorite covered dish to trade with another employee. Everyone takes home a ready-made dinner-that someone else cooked for them.” If you try, you can probably think of dozens of fun ideas to boost office culture. “It’s a good idea,” Good says, “to let employees take the lead on this; let them develop their own culture.”

Money talks; it’s true. But people are far more motivated to do their best work when they love their jobs, have fun at work, and know that the leadership notices and appreciates what they do. It’s not that hard to give them that.

Getting the best employees requires offering an attractive salary and benefits package. Getting the best work from those employees requires something more.

6 ways to motivate your team-for free

These days physicians are understandably frustrated by the increased burden of paperwork-especially when that paperwork is electronic. When it comes to protecting themselves from malpractice suits, however, their EHRs can sometimes be their best friends.                                                      

The first line of defense against malpractice claims is documentation, and the paper trail left by EHRs is extensive. This means that if you’re doing your job right, your EHR can be your best defense.

“Having documentation in the medical record is the best proof of what was done, and EHRs are rich data sources,” says Sean P. Byrne, JD, a Virginia healthcare attorney who defends physicians in malpractice claims and lawsuits. 

Used wisely, electronic documentation can sometimes save the day.

Byrne recalls a case in which a patient had an elevated PSA, but the physician did not follow through with the appropriate care.

“We had good electronic data to show that the patient was informed of his test results and multiple attempts were made to schedule follow-up appointments,” he says.

The electronic record and the patient’s engagement with the portal made it perfectly clear that the physician had done his part but the patient had not done his.

“Care is a partnership,” Byrne says. “When you can show that the patient had seven no-shows and was non-compliant, you can prove that they aren’t doing their part.”

Patient engagement via portals can be helpful in other ways as well, particularly when they give patients a sense of being a part of their own care team.

“Patients are less likely to sue when they feel like they were consulted and were a part of the decision-making,“ Byrne says.

However, if you want to make sure your EHR testifies for the defense and not the prosecution, you need to know how to use it wisely.

EHRs aren’t perfect. You can’t depend on the EHR alone to get the documentation right.

Malpractice claims in which EHRs “contributed to patient injury” have increased sharply in the past decade, though EHR-related issues are still a very small minority of causes for complaints, according to data from The Doctors Company, a leading medical malpractice insurer.

In 2018, EHR-related issues accounted for only 1.39 percent of claims. Most of the problems, according to The Doctors Company analysis, were due to “system technology and design issues” or “user-related issues.”

The trend seems to be reversing somewhat, possibly due to more physicians being on the downside of the learning curve. Still, careful use of technology is crucial to making sure your EHR first does no harm.

“When I speak to doctors about electronic records as a tool to prove you gave good care, I always urge them to make it patient specific,” Byrne says. “Don’t just click on drop-down boxes. Instead use the free text fields to explain the rationale for your clinical decisions.

“I had a client recently who should have done an abdominal examination,” Byrne continues. “She said she did, that she always does in this situation. However, it wasn’t documented because there was no place on the template for that type of exam.”

This is a common problem with check-the-box style EHR documentation, but there is a way around that.

“She should have put it in a free text field,” Byrne says. “You need to give me as many tools as you can to show you’ve given the best care. This is especially important when the case is complex or you have an unhappy patient.” 

Byrne also cautions about the use of templates and cut-and-paste charting.

“Jurors don’t put as much stock into auto-populate [as hand-keyed notes],” he says.

Most EHRs allow you to customize your system to suit your practice, and this is your chance to make sure there’s a place to make note of anything that wasn’t on the menu.

“It’s important to take time to customize your EHR system,” Byrne says.

While depending on cut-and-paste and checkboxes can be a dangerous underuse of the system’s features, overuse can be a problem too.

Richard Roberts, MD, JD, professor emeritus of family medicine at the University of Wisconsin, is both a lawyer and a physician, but he prefers to be called a “simple country doctor.”

He was an early adopter of electronic records and remembers the days of making patient notes on 3 x 5 index cards. He knows that the pertinent information often fits just fine and warns against over-documentation.

“There’s a mistaken notion that all information is valuable information, and that it is equally accessible and useful,” he says.

In fact, too much data can hurt your cause.

Byrne describes “hunting through 1,100 pages of printouts to find a narrative note to explain what’s going on.”

Make sure the key facts and clinical reasoning are clear and easy to locate. Even if it takes more than a 3 x 5 note card, make sure the story is easy for your lawyer to find and jurors to understand.

When you input data can be just as important as what you input. EHRs make it both tempting and easy to adjust the record after the fact. However, that can be extremely dangerous.

“Metadata now shows when, where, and what time entries were made-all are time/date stamped,” Byrne says. “Make sure you enter the notes as soon as possible after the encounter. Otherwise it can look self-serving.”

It also means you’re more likely to get caught if you do cheat. 

Roberts recalls a malpractice case with a Chicago pediatrician who was sued when a child had a bad outcome from a case of meningitis. The doctor did everything right but neglected to add the child’s white count to the record.

When she found out she was being sued, the pediatrician panicked and inserted the information into the record. She had done the test. However, by altering the record after the fact 

without making clear that she was doing it after the fact

, she gave jurors reason to think that she was hiding something.

If you document wisely and responsibly, your EHR can do you far more good than harm, because one thing hasn’t changed.

“The key issue,” Roberts says, “is did you give good care?”

Avoiding malpractice is no different today than it was twenty years ago. It just comes down to giving good care and making sure you document that you did. EHRs-if used properly and carefully-can be a big help in doing that.

Wise and careful use of electronic records can save the day in case of malpractice suits

Author | Avery Hurt

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