By Katherine Dandy, Esq.
Partner, Brown, Gruttadaro, Gaujean & Prato PLLC
Technology has continually had an effect on the doctor/patient relationship. First, there was the electronic medical record (EMR), a trend that many physicians and hospitals were slow to embrace, and are still not convinced by. Medical scribes came next—almost as a response to EMR—which created an overload of clerical responsibilities and documentation, taking physicians away from actual patient care. Meanwhile, more and more patients have been using digital resources to self-diagnose, sometimes as a replacement for seeing their doctor.
Here are a few examples of how technology is influencing healthcare as we know it in 2016:
One of the biggest trends we’re seeing in healthcare is the ability for patients to consult a physician using technology like Skype or a medical app. While it seems convenient for all involved, there are several issues that arise from this practice outside of whether appropriate clinical standards can be met through a remote examination.
From a licensing perspective, if the doctor is not licensed in the location of the patient, the doctor may be practicing in a state without a license, which can lead to professional disciplinary problems. Another concern is whether the doctor’s professional liability insurance carrier is willing to insure this method of practice. These and other issues must be addressed before a doctor embarks on this type of exam.
Recording Office Visits
Today, when nearly everyone has a cellphone capable of recording both audio and video, it is inevitable that patients will request to record office visits, which has its advantages and disadvantages for both parties. Patients will be better able to follow their physicians’ instructions and recommendations and can re-play the recording when needed. This can be particularly valuable for memory-impaired patients or those who have just been diagnosed with a serious medical condition and may not have heard or completely understood all of the physician’s medical jargon or advice.
Additionally, being recorded could encourage physicians to focus on their bedside manner and be thorough in their interactions with patients, which can be beneficial to both parties.
Of course, having a record of a patient encounter can be a double-edged sword if litigation arises. Indeed, hospitals, leery of lawsuits, can implement strict internal policies forbidding patients from recording medical visits. There are also privacy concerns for both patients and physicians that must be addressed, since the recording could get into someone else’s hands, thereby violating doctor-patient confidentiality. The key is for healthcare providers to prepare for such requests and develop a policy regarding video/audio in the exam room that patients are made aware of.
Surgical black box recorders
A Toronto hospital recently started using a “black box” to record certain procedures, capturing images from a laparoscopic camera, along with hundreds of data points from around the OR. Like the black boxes used on airplanes, the device is meant to be a teaching tool for improving patient safety and reducing risks. The recordings allow researchers to study surgical technique, communication, safety processes and room disruptions that may affect patient outcome.
Physicians and hospitals thinking of utilizing this technology may be wary that the recordings may be used against them in malpractice actions. For example, there is a danger that upon viewing the recording, a graphic detail of something going wrong may bias the jury against the defendant (even if it was a known complication or the error was not the cause of the outcome). That said, black box data could be useful to the defense if the plaintiff witnesses are suggesting that something occurred during the procedure, and the data shows definitively that it did not. In addition, patients may be concerned about their privacy being violated if the recordings get out.
To maximize teaching value while minimizing risks, hospitals considering the use of surgical black boxes should do the following:
- Emphasize that data is being collected solely for the purpose of peer review and quality improvement, so it should be protected from disclosure in legal proceedings
Implement a destruction policy, so that the recording, once analyzed, will be unavailable for future use/distribution
Identify only the surgeon but not the patient
Consider storage requirements (encrypt digital information) to avoid HIPAA violations
Whether you have experienced these trends yet or not, healthcare providers must educate themselves and be prepared for the changes associated with these and other technological advances. They could be coming to an exam or operating room near you soon.
Katherine Dandy is a partner at Brown, Gruttadaro, Gaujean & Prato, PLLC in White Plains, NY. She can be reached at 914-949-5300.