Financial/Legal

I was a third-year gastroenterology fellow when I realized that something had to change. I was on a one-way trip to burnout.

I went through medical school with the sole goal of becoming an excellent physician. Like many physicians, I was six figures deep in student loan debt by the end of training. I remember clearly being told, “You are going to be physicians. Money won’t be a problem.” In fact, in 2021, money remains a taboo topic in medicine, and most of medical education remains void of the fundamentals of money management.

Although I was surrounded by some of the most brilliant minds in medicine, burnout was spreading like a wave. Physicians are becoming increasingly broken, burned out by a system through which we have vowed to care for our patients: For better or for worse. We are required to attend lectures about burnout, yet nothing about money or finances. We can all agree that talking about resilience and burnout during odd hours of the morning are ironic measures that by themselves have done nothing to help us through the crisis that exists.

I noticed that there seemed to be a difference between physicians who had their finances in order and those who didn’t. This eventually made sense as I became more aware of the data that now exists. Healthy financial practices can lead to financial independence, which may in turn decrease burnout-associated stressors.¹ This is what we need.

My observation about the difference in satisfaction between physicians led me to decide to explore that path for myself. My hypothesis? Empowering myself financially is an anti-burnout tool that will improve my satisfaction, longevity in medicine, and my well-being. I traded my financial illiteracy for empowerment and I am now on a mission to help physicians become financially empowered. This is an important step toward preventing and recovering from burnout. The surprising part is that it is not difficult. You need to be committed. Our math literacy is already higher than needed. When we physicians are financially independent, we will have the ability to practice medicine in a way that is healthy. In a world where physician suicide, burnout, and dissatisfaction continue to rise, there is an urgent call to financial action. This is a critical key that will help us change the future of medicine.

In this article, I am going to share four myths that are preventing physicians from truly managing their finances.


1. I love medicine. I have no plans of leaving: I love gastroenterology. The ability to use our critical internal medicine skills as well as intervene procedurally is truly a privilege. As a gastroenterologist with a focus on inflammatory bowel diseases, I have the honor of walking patients through seasons of life and making decisions that truly impact their lives. It is an honor. I also believe that good money management allows physicians to become even better physicians. The platforms of medicine continue to change. According to Physician Advocacy Institute, about 70% of physicians report being employed.² As physicians graduate from training, joining large hospitals, physician autonomy in the practice of medicine is affected. To ensure that we continue to practice medicine at the fullest extent of our oath, it is essential that our finances allow us the ability and capacity to fulfill that oath. Furthermore, the pandemic has shown that physician income is not pandemic-proof. Having a healthy emergency fund and diversifying our income sources is critical as we move forward.

2. I have a financial adviser or planner. They will figure it out for me: Financial advisers and planners are hired professionals with varied levels of training and expertise. A great financial adviser can be an important part of your team. A team that is led by you, the CEO, because no one will care about your finances as much as you do. Investing the time to learn the basics can pay dividends. When I started my financial education journey, I was completely illiterate. I knew I wanted to have money but didn’t know how. One of the first things in my financial competency journey was to hire a financial adviser. Unfortunately, as I learned more about money, I realized that my investments favored him more than they did me. Coincidentally, we had similar starting balances in a different self-management investment account. At the end of our time together, our self-managed funds fared better than his actively picked funds. As humans, we assume that actively picking investments and stocks would be better than passive investments. Based on experience and data, investing in boring, diverse funds such as index funds averagely do better than actively managed funds. Is it wrong then to hire an adviser? No, but you are still the CEO of you-incorporated. Choosing to completely delegate to someone else, avoiding the basic education that would allow you to better screen for effectiveness and competence, may in fact be negligence. After empowering themselves financially, some physicians who have gone through my money curriculum have chosen to keep their advisers; others chose to self-manage. The key is giving yourself the gift of choice: Choosing to have an adviser because you want to rather than because you thought you had no choice.

3. Money management looks complicated. This is one of the most common statements I get for why physicians avoid their own money management. I remember the complex biochemical pathways we learned in medical school. Those were hard and complicated. We chose to stay the course because we believed that, with repetition and simplifying, it would eventually become less difficult. Why then is it any different with money? A physician shared a discussion she once had with a banker. She was told, “Doctors are bad with money.” When did we become the stereotype for being bad with money? If we can learn channelopathies and memorize mechanisms and save lives, we can do money. We have to start somewhere. We may not get it the first time. However, as physicians, we are the more persistent people and are excellent examples of what happens when you commit to learning something new. After coaching hundreds of physicians regarding money management, I have concluded that physicians are not bad with money. We simply may not be committed to learning it. Once we commit, the rest becomes history.

4. I don’t have time. For practicing gastroenterologists dealing with post-lockdown influx of patients, the days can be long. As a gastroenterologist who is also a parent, I know firsthand how time can be tight. When we had two children, we were busy. We thought we were at our capacity on time with two children. Then we had a third. Suddenly, life with two children looked easier than with three. As humans, we have the capacity to create. Things take exactly how much time we commit to them. If I give myself a month to write an article, I will write it in a month. If I give myself 2 weeks, I will be done in 2 weeks. The key is to remember that we all have 24 hours. David Frankel is the author of “The Freedom Formula: How to Succeed in Business Without Sacrificing Your Family, Health, or Life.”³ He analyzed a poll of business owners. He showed that they were wasting an average of 21.8 hours per week. Many times, we talk about our to-do list. We don’t talk enough about our “to don’t list.” This refers to the list of things we need to stop doing so that we can spend time on things that give or add value to our lives. Starting with as little as 30 minutes per day or per week dedicated to learning and/or managing our finances, the result will compound.

As the platform of medicine continues to evolve, it is important for astute gastroenterologists to be part of these conversations. When we are confident in our finances, they become a vehicle that gives strength to the power of our voice. We are less likely to overwork and more likely to find joy and meaning within and outside medicine.

If we want to care for our patients at a high level and keep our oath to do no harm, we have to remember that includes doing no harm to self as well.

Money management tools and empowering ourselves financially should be an essential component of our training; until then, the onus is on you to learn, so that you can be well.

Your voice matters. Your wellness matters. Your time matters. Your money matters.
 

Dr. Alli-Akintade is a gastroenterologist with Kaiser Permanente South Sacramento (Calif.) Medical Center. She is the CEO of MoneyFitMD, a financial empowerment coaching platform for female physicians. She is also the host of The MoneyFitMD podcast.

References

1. Royce TJ et al. Pract Radiat Oncol. Jul-Aug 2019;9(4):231-8.

2. Physician Advocacy Institute. “COVID-19’s Impact on Acquisitions of Physician Practices and Physician Employment 2019-2020.” 2021 Jun.

3. Finkel D. “New Study Shows You’re Wasting 21.8 hours a Week.” Inc.com. 2018 Mar 1.

I was a third-year gastroenterology fellow when I realized that something had to change. I was on a one-way trip to burnout.

I went through medical school with the sole goal of becoming an excellent physician. Like many physicians, I was six figures deep in student loan debt by the end of training. I remember clearly being told, “You are going to be physicians. Money won’t be a problem.” In fact, in 2021, money remains a taboo topic in medicine, and most of medical education remains void of the fundamentals of money management.

Although I was surrounded by some of the most brilliant minds in medicine, burnout was spreading like a wave. Physicians are becoming increasingly broken, burned out by a system through which we have vowed to care for our patients: For better or for worse. We are required to attend lectures about burnout, yet nothing about money or finances. We can all agree that talking about resilience and burnout during odd hours of the morning are ironic measures that by themselves have done nothing to help us through the crisis that exists.

I noticed that there seemed to be a difference between physicians who had their finances in order and those who didn’t. This eventually made sense as I became more aware of the data that now exists. Healthy financial practices can lead to financial independence, which may in turn decrease burnout-associated stressors.¹ This is what we need.

My observation about the difference in satisfaction between physicians led me to decide to explore that path for myself. My hypothesis? Empowering myself financially is an anti-burnout tool that will improve my satisfaction, longevity in medicine, and my well-being. I traded my financial illiteracy for empowerment and I am now on a mission to help physicians become financially empowered. This is an important step toward preventing and recovering from burnout. The surprising part is that it is not difficult. You need to be committed. Our math literacy is already higher than needed. When we physicians are financially independent, we will have the ability to practice medicine in a way that is healthy. In a world where physician suicide, burnout, and dissatisfaction continue to rise, there is an urgent call to financial action. This is a critical key that will help us change the future of medicine.

In this article, I am going to share four myths that are preventing physicians from truly managing their finances.


1. I love medicine. I have no plans of leaving: I love gastroenterology. The ability to use our critical internal medicine skills as well as intervene procedurally is truly a privilege. As a gastroenterologist with a focus on inflammatory bowel diseases, I have the honor of walking patients through seasons of life and making decisions that truly impact their lives. It is an honor. I also believe that good money management allows physicians to become even better physicians. The platforms of medicine continue to change. According to Physician Advocacy Institute, about 70% of physicians report being employed.² As physicians graduate from training, joining large hospitals, physician autonomy in the practice of medicine is affected. To ensure that we continue to practice medicine at the fullest extent of our oath, it is essential that our finances allow us the ability and capacity to fulfill that oath. Furthermore, the pandemic has shown that physician income is not pandemic-proof. Having a healthy emergency fund and diversifying our income sources is critical as we move forward.

2. I have a financial adviser or planner. They will figure it out for me: Financial advisers and planners are hired professionals with varied levels of training and expertise. A great financial adviser can be an important part of your team. A team that is led by you, the CEO, because no one will care about your finances as much as you do. Investing the time to learn the basics can pay dividends. When I started my financial education journey, I was completely illiterate. I knew I wanted to have money but didn’t know how. One of the first things in my financial competency journey was to hire a financial adviser. Unfortunately, as I learned more about money, I realized that my investments favored him more than they did me. Coincidentally, we had similar starting balances in a different self-management investment account. At the end of our time together, our self-managed funds fared better than his actively picked funds. As humans, we assume that actively picking investments and stocks would be better than passive investments. Based on experience and data, investing in boring, diverse funds such as index funds averagely do better than actively managed funds. Is it wrong then to hire an adviser? No, but you are still the CEO of you-incorporated. Choosing to completely delegate to someone else, avoiding the basic education that would allow you to better screen for effectiveness and competence, may in fact be negligence. After empowering themselves financially, some physicians who have gone through my money curriculum have chosen to keep their advisers; others chose to self-manage. The key is giving yourself the gift of choice: Choosing to have an adviser because you want to rather than because you thought you had no choice.

3. Money management looks complicated. This is one of the most common statements I get for why physicians avoid their own money management. I remember the complex biochemical pathways we learned in medical school. Those were hard and complicated. We chose to stay the course because we believed that, with repetition and simplifying, it would eventually become less difficult. Why then is it any different with money? A physician shared a discussion she once had with a banker. She was told, “Doctors are bad with money.” When did we become the stereotype for being bad with money? If we can learn channelopathies and memorize mechanisms and save lives, we can do money. We have to start somewhere. We may not get it the first time. However, as physicians, we are the more persistent people and are excellent examples of what happens when you commit to learning something new. After coaching hundreds of physicians regarding money management, I have concluded that physicians are not bad with money. We simply may not be committed to learning it. Once we commit, the rest becomes history.

4. I don’t have time. For practicing gastroenterologists dealing with post-lockdown influx of patients, the days can be long. As a gastroenterologist who is also a parent, I know firsthand how time can be tight. When we had two children, we were busy. We thought we were at our capacity on time with two children. Then we had a third. Suddenly, life with two children looked easier than with three. As humans, we have the capacity to create. Things take exactly how much time we commit to them. If I give myself a month to write an article, I will write it in a month. If I give myself 2 weeks, I will be done in 2 weeks. The key is to remember that we all have 24 hours. David Frankel is the author of “The Freedom Formula: How to Succeed in Business Without Sacrificing Your Family, Health, or Life.”³ He analyzed a poll of business owners. He showed that they were wasting an average of 21.8 hours per week. Many times, we talk about our to-do list. We don’t talk enough about our “to don’t list.” This refers to the list of things we need to stop doing so that we can spend time on things that give or add value to our lives. Starting with as little as 30 minutes per day or per week dedicated to learning and/or managing our finances, the result will compound.

As the platform of medicine continues to evolve, it is important for astute gastroenterologists to be part of these conversations. When we are confident in our finances, they become a vehicle that gives strength to the power of our voice. We are less likely to overwork and more likely to find joy and meaning within and outside medicine.

If we want to care for our patients at a high level and keep our oath to do no harm, we have to remember that includes doing no harm to self as well.

Money management tools and empowering ourselves financially should be an essential component of our training; until then, the onus is on you to learn, so that you can be well.

Your voice matters. Your wellness matters. Your time matters. Your money matters.
 

Dr. Alli-Akintade is a gastroenterologist with Kaiser Permanente South Sacramento (Calif.) Medical Center. She is the CEO of MoneyFitMD, a financial empowerment coaching platform for female physicians. She is also the host of The MoneyFitMD podcast.

References

1. Royce TJ et al. Pract Radiat Oncol. Jul-Aug 2019;9(4):231-8.

2. Physician Advocacy Institute. “COVID-19’s Impact on Acquisitions of Physician Practices and Physician Employment 2019-2020.” 2021 Jun.

3. Finkel D. “New Study Shows You’re Wasting 21.8 hours a Week.” Inc.com. 2018 Mar 1.

I was a third-year gastroenterology fellow when I realized that something had to change. I was on a one-way trip to burnout.

I went through medical school with the sole goal of becoming an excellent physician. Like many physicians, I was six figures deep in student loan debt by the end of training. I remember clearly being told, “You are going to be physicians. Money won’t be a problem.” In fact, in 2021, money remains a taboo topic in medicine, and most of medical education remains void of the fundamentals of money management.

Although I was surrounded by some of the most brilliant minds in medicine, burnout was spreading like a wave. Physicians are becoming increasingly broken, burned out by a system through which we have vowed to care for our patients: For better or for worse. We are required to attend lectures about burnout, yet nothing about money or finances. We can all agree that talking about resilience and burnout during odd hours of the morning are ironic measures that by themselves have done nothing to help us through the crisis that exists.

I noticed that there seemed to be a difference between physicians who had their finances in order and those who didn’t. This eventually made sense as I became more aware of the data that now exists. Healthy financial practices can lead to financial independence, which may in turn decrease burnout-associated stressors.¹ This is what we need.

My observation about the difference in satisfaction between physicians led me to decide to explore that path for myself. My hypothesis? Empowering myself financially is an anti-burnout tool that will improve my satisfaction, longevity in medicine, and my well-being. I traded my financial illiteracy for empowerment and I am now on a mission to help physicians become financially empowered. This is an important step toward preventing and recovering from burnout. The surprising part is that it is not difficult. You need to be committed. Our math literacy is already higher than needed. When we physicians are financially independent, we will have the ability to practice medicine in a way that is healthy. In a world where physician suicide, burnout, and dissatisfaction continue to rise, there is an urgent call to financial action. This is a critical key that will help us change the future of medicine.

In this article, I am going to share four myths that are preventing physicians from truly managing their finances.


1. I love medicine. I have no plans of leaving: I love gastroenterology. The ability to use our critical internal medicine skills as well as intervene procedurally is truly a privilege. As a gastroenterologist with a focus on inflammatory bowel diseases, I have the honor of walking patients through seasons of life and making decisions that truly impact their lives. It is an honor. I also believe that good money management allows physicians to become even better physicians. The platforms of medicine continue to change. According to Physician Advocacy Institute, about 70% of physicians report being employed.² As physicians graduate from training, joining large hospitals, physician autonomy in the practice of medicine is affected. To ensure that we continue to practice medicine at the fullest extent of our oath, it is essential that our finances allow us the ability and capacity to fulfill that oath. Furthermore, the pandemic has shown that physician income is not pandemic-proof. Having a healthy emergency fund and diversifying our income sources is critical as we move forward.

2. I have a financial adviser or planner. They will figure it out for me: Financial advisers and planners are hired professionals with varied levels of training and expertise. A great financial adviser can be an important part of your team. A team that is led by you, the CEO, because no one will care about your finances as much as you do. Investing the time to learn the basics can pay dividends. When I started my financial education journey, I was completely illiterate. I knew I wanted to have money but didn’t know how. One of the first things in my financial competency journey was to hire a financial adviser. Unfortunately, as I learned more about money, I realized that my investments favored him more than they did me. Coincidentally, we had similar starting balances in a different self-management investment account. At the end of our time together, our self-managed funds fared better than his actively picked funds. As humans, we assume that actively picking investments and stocks would be better than passive investments. Based on experience and data, investing in boring, diverse funds such as index funds averagely do better than actively managed funds. Is it wrong then to hire an adviser? No, but you are still the CEO of you-incorporated. Choosing to completely delegate to someone else, avoiding the basic education that would allow you to better screen for effectiveness and competence, may in fact be negligence. After empowering themselves financially, some physicians who have gone through my money curriculum have chosen to keep their advisers; others chose to self-manage. The key is giving yourself the gift of choice: Choosing to have an adviser because you want to rather than because you thought you had no choice.

3. Money management looks complicated. This is one of the most common statements I get for why physicians avoid their own money management. I remember the complex biochemical pathways we learned in medical school. Those were hard and complicated. We chose to stay the course because we believed that, with repetition and simplifying, it would eventually become less difficult. Why then is it any different with money? A physician shared a discussion she once had with a banker. She was told, “Doctors are bad with money.” When did we become the stereotype for being bad with money? If we can learn channelopathies and memorize mechanisms and save lives, we can do money. We have to start somewhere. We may not get it the first time. However, as physicians, we are the more persistent people and are excellent examples of what happens when you commit to learning something new. After coaching hundreds of physicians regarding money management, I have concluded that physicians are not bad with money. We simply may not be committed to learning it. Once we commit, the rest becomes history.

4. I don’t have time. For practicing gastroenterologists dealing with post-lockdown influx of patients, the days can be long. As a gastroenterologist who is also a parent, I know firsthand how time can be tight. When we had two children, we were busy. We thought we were at our capacity on time with two children. Then we had a third. Suddenly, life with two children looked easier than with three. As humans, we have the capacity to create. Things take exactly how much time we commit to them. If I give myself a month to write an article, I will write it in a month. If I give myself 2 weeks, I will be done in 2 weeks. The key is to remember that we all have 24 hours. David Frankel is the author of “The Freedom Formula: How to Succeed in Business Without Sacrificing Your Family, Health, or Life.”³ He analyzed a poll of business owners. He showed that they were wasting an average of 21.8 hours per week. Many times, we talk about our to-do list. We don’t talk enough about our “to don’t list.” This refers to the list of things we need to stop doing so that we can spend time on things that give or add value to our lives. Starting with as little as 30 minutes per day or per week dedicated to learning and/or managing our finances, the result will compound.

As the platform of medicine continues to evolve, it is important for astute gastroenterologists to be part of these conversations. When we are confident in our finances, they become a vehicle that gives strength to the power of our voice. We are less likely to overwork and more likely to find joy and meaning within and outside medicine.

If we want to care for our patients at a high level and keep our oath to do no harm, we have to remember that includes doing no harm to self as well.

Money management tools and empowering ourselves financially should be an essential component of our training; until then, the onus is on you to learn, so that you can be well.

Your voice matters. Your wellness matters. Your time matters. Your money matters.
 

Dr. Alli-Akintade is a gastroenterologist with Kaiser Permanente South Sacramento (Calif.) Medical Center. She is the CEO of MoneyFitMD, a financial empowerment coaching platform for female physicians. She is also the host of The MoneyFitMD podcast.

References

1. Royce TJ et al. Pract Radiat Oncol. Jul-Aug 2019;9(4):231-8.

2. Physician Advocacy Institute. “COVID-19’s Impact on Acquisitions of Physician Practices and Physician Employment 2019-2020.” 2021 Jun.

3. Finkel D. “New Study Shows You’re Wasting 21.8 hours a Week.” Inc.com. 2018 Mar 1.

In July, I had my annual physical with my primary care physician, whose practice is based out of a large urban academic medical center. As she concluded my visit and directed me to the lab to have my blood work done, she said, “You’ll be receiving an automatic notice from MyChart by 9 am tomorrow that your medical records from today’s visit are available. I apologize if I have not yet had the opportunity to review them and enter my note, but you’ll get access to all of that, as well, as soon as it is in the system.”

This sort of interaction is increasingly common across the United States as health care institutions implement policies and procedures to comply with new regulations promulgated by the Office of the National Coordinator for Health Information Technology (ONC), which went into effect on April 5, 2021. These rules were promulgated in accordance with the 21st Century Cures Act of 2016 (Cures Act).¹ The regulations, known as the Interoperability, Information Blocking, and the ONC Health IT Certification Program, implement provisions of the Cures Act intended to “support the access, exchange, and use of electronic health information.” The rule is considered a significant step in the “open notes” movement, which is intended to make health care more transparent by enabling patients to access their medical records. The drafters of the ONC regulations have carved out certain exceptions to the information blocking rule. For example, one exception allows some patient information to be withheld where making that information available might cause physical harm to the patient or another person.

Thus far, few patients have been informed about the new regulation.² By forbidding “information blocking,” the rule enables patients to more easily access and control their health information. Currently, the rule requires that physicians allow automatic access, without charge, to a patient’s own personal health information, including clinical notes, medication lists, laboratory results, and other diagnostic reports. Records must be provided “without delay,” or at least as soon as the physician’s office receives an electronic copy. In 2022, it will be required that access to even more of a patient’s personal electronic health record be provided in real-time through a patient portal and that electronic health information be shareable across third-party apps.

The Cures Act and the regulations governing its implementation highlight the inherent tension between two core principles of bioethical inquiry: autonomy and beneficence. The first principle, autonomy, champions allowing patient access and control over their own personal information. Beneficence, which is often expressed as paternalism, ensures that the experts are able to analyze and interpret data so that patients are in the best position to then make informed decisions.

With these principles in mind, arguments against open notes have generally fallen into three related categories. First, critics worry that immediate access to one’s medical record will increase patient anxiety caused by feelings of being inundated with complex medical information that patients may be ill-equipped to analyze and understand. This is a common refrain any time policies are implemented to improve medical information sharing. For example, critics of direct-to-consumer genetic testing caution that permitting unfettered access to complex information, particularly without an intermediary to interpret the data, could lead to confusion and poor medical choices.

There may be validity to this claim. One study found that 3% of patients reported feeling very confused when granted access to their medical notes.³ Another study concluded that direct release of medical test results “sometimes leads to unnecessary anxiety.”⁴ While the drafters of the ONC regulations have carved out certain exceptions to the information blocking rule, those exceptions do not allow for withholding of information because of concerns about patient anxiety or psychological harms.

The second common critique of open notes is that requiring release of all clinical notes will lead to clinician self-censorship, effectively muzzling or silencing the experts whose responsibility it is to objectively interpret results in order to provide the best care for their patients. Some have expressed concern that clinicians will be forced to “code” their records to avoid addressing “sensitive” subjects that might make patients feel offended or judged. This, in turn, might lead to less complete, reliable, or useful clinician communication.³

In fact, open notes has led to changes in the documentation process for some clinicians. They have reported modifying the way they document patient visits by changing their use of critical language and sensitive information.⁵ One study found that open notes led physicians to adjust “their language to avoid being perceived as critical of patients; omitting certain terms, such as ‘noncompliant’ and ‘patient denies’; and modifying how they document sensitive information.”³

In response, experts recommend focusing on precise and empathetic patient notes; in other words, the clinician should not write something in the note that they would not say directly to the patient. For example, they recommend that clinicians use precise language (for example, identifying the patient’s BMI) rather than using terms that could be offensive (for example, labeling the patient as “obese”).⁶ The shift to more empathetic note-taking could be seen less as a burden and more as a valuable tool in the shared decision-making endeavor: It could allow physicians to document both their clinical judgments and the patient’s values and preferences, which could lead to better medical decision-making.

Third, critics of open notes point to concerns about the burden it places on clinicians’ already limited time. The ONC rule requires automatic release of test results regardless of whether the clinician has had the opportunity to review them and offer their interpretation and insight. Because physician interpretation of results has known benefits,⁴ this puts additional pressure on clinicians to review results and enter notes in a timely manner. But physicians have reported that often open notes necessitates that they spend more time on documentation than they would otherwise.⁵

Despite critiques of open notes, the benefits of allowing patients access to their medical records have been repeatedly demonstrated. And research has shown that patients benefit from accessing open notes by allowing them to access and control their own personal medical information.⁵ Patients report that they understand and value the information provided to them in their medical records,⁷ and they feel empowered to participate in their medical decision-making. In surveys, patients report that reading their doctors’ notes is useful for taking care of their health and for remembering their care plans, understanding why a medication was prescribed, and reinforcing the need to take their medications and adhere to treatment plans.⁸

Importantly, open notes can increase patient engagement and patients’ trust in their physicians,⁹ thereby improving the doctor-patient relationship.³ And allowing patients to share their medical records with care partners enables supported decision-making, particularly for older and chronically ill individuals.³ Additionally, it is predicted that open notes may, in fact, decrease legal liability.⁹ By improving both trust in the doctor-patient relationship and safety, some experts expect that legal claims against clinicians will, in turn, decrease.¹⁰

The modern practice of medicine necessitates a more empathetic approach to clinical note-taking, even in the absence of regulation requiring it. As the regulations implementing the Cures Act roll out, patients will have easier, and more immediate, access to their medical records. Despite earlier hesitancy, clinicians are steadily beginning to support sharing access to notes with patients.⁵ Change can be hard. But the change expected of clinicians because of these new regulations appears to be less onerous than originally anticipated.

Prof. Koch is codirector of Health Law & Policy Institute and assistant professor at the University of Houston Law Center, as well as director of law and ethics at the MacLean Center for Clinical Medical Ethics at the University of Chicago. She has no disclosures.

This article was updated Sept. 9, 2021.

References

1. Fed Regist. 2020 May;85(85):25642-961.

2. The Petrie-Flom Center Staff. “New Rule Puts Medical Data in Patients’ Hands.” Bill of Health. July 12, 2021. Accessed August 30, 2021. https://blog.petrieflom.law.harvard.edu/2021/07/12/new-rule-puts-medical-data-in-patients-hands/.

3. Blease C et al. Ann Intern Med. 2021 Jan;174(1):101-2.

4. Pillemer F et al. PLoS One. 2016 Jun. doi: 10.1371/journal.pone.0154743.

5. DesRoches CM et al. JAMA Netw Open. 2020 Mar. doi: 10.1001/jamanetworkopen.2020.1753.

6. Heath S. “Most Patients Understand Clinical Notes, Patient Data Access.” Patient Engagement HIT. July 29, 2020. Accessed August 30, 2021. https://patientengagementhit.com/news/most-patients-understand-clinical-notes-patient-data-access

7. Leveille SG et al. J Gen Intern Med. 2020 Dec;35(12):3510-6.

8. Walker J et al. J Med Internet Res. 2019 May. doi: 10.2196/13876.

9. Bell SK et al. BMJ Qual Saf. 2017 Apr;26(4):262-70.

10. Kachalia A, Mello MM. N Engl J Med. 2011 Apr;364(16):1564-72.

In July, I had my annual physical with my primary care physician, whose practice is based out of a large urban academic medical center. As she concluded my visit and directed me to the lab to have my blood work done, she said, “You’ll be receiving an automatic notice from MyChart by 9 am tomorrow that your medical records from today’s visit are available. I apologize if I have not yet had the opportunity to review them and enter my note, but you’ll get access to all of that, as well, as soon as it is in the system.”

This sort of interaction is increasingly common across the United States as health care institutions implement policies and procedures to comply with new regulations promulgated by the Office of the National Coordinator for Health Information Technology (ONC), which went into effect on April 5, 2021. These rules were promulgated in accordance with the 21st Century Cures Act of 2016 (Cures Act).¹ The regulations, known as the Interoperability, Information Blocking, and the ONC Health IT Certification Program, implement provisions of the Cures Act intended to “support the access, exchange, and use of electronic health information.” The rule is considered a significant step in the “open notes” movement, which is intended to make health care more transparent by enabling patients to access their medical records. The drafters of the ONC regulations have carved out certain exceptions to the information blocking rule. For example, one exception allows some patient information to be withheld where making that information available might cause physical harm to the patient or another person.

Thus far, few patients have been informed about the new regulation.² By forbidding “information blocking,” the rule enables patients to more easily access and control their health information. Currently, the rule requires that physicians allow automatic access, without charge, to a patient’s own personal health information, including clinical notes, medication lists, laboratory results, and other diagnostic reports. Records must be provided “without delay,” or at least as soon as the physician’s office receives an electronic copy. In 2022, it will be required that access to even more of a patient’s personal electronic health record be provided in real-time through a patient portal and that electronic health information be shareable across third-party apps.

The Cures Act and the regulations governing its implementation highlight the inherent tension between two core principles of bioethical inquiry: autonomy and beneficence. The first principle, autonomy, champions allowing patient access and control over their own personal information. Beneficence, which is often expressed as paternalism, ensures that the experts are able to analyze and interpret data so that patients are in the best position to then make informed decisions.

With these principles in mind, arguments against open notes have generally fallen into three related categories. First, critics worry that immediate access to one’s medical record will increase patient anxiety caused by feelings of being inundated with complex medical information that patients may be ill-equipped to analyze and understand. This is a common refrain any time policies are implemented to improve medical information sharing. For example, critics of direct-to-consumer genetic testing caution that permitting unfettered access to complex information, particularly without an intermediary to interpret the data, could lead to confusion and poor medical choices.

There may be validity to this claim. One study found that 3% of patients reported feeling very confused when granted access to their medical notes.³ Another study concluded that direct release of medical test results “sometimes leads to unnecessary anxiety.”⁴ While the drafters of the ONC regulations have carved out certain exceptions to the information blocking rule, those exceptions do not allow for withholding of information because of concerns about patient anxiety or psychological harms.

The second common critique of open notes is that requiring release of all clinical notes will lead to clinician self-censorship, effectively muzzling or silencing the experts whose responsibility it is to objectively interpret results in order to provide the best care for their patients. Some have expressed concern that clinicians will be forced to “code” their records to avoid addressing “sensitive” subjects that might make patients feel offended or judged. This, in turn, might lead to less complete, reliable, or useful clinician communication.³

In fact, open notes has led to changes in the documentation process for some clinicians. They have reported modifying the way they document patient visits by changing their use of critical language and sensitive information.⁵ One study found that open notes led physicians to adjust “their language to avoid being perceived as critical of patients; omitting certain terms, such as ‘noncompliant’ and ‘patient denies’; and modifying how they document sensitive information.”³

In response, experts recommend focusing on precise and empathetic patient notes; in other words, the clinician should not write something in the note that they would not say directly to the patient. For example, they recommend that clinicians use precise language (for example, identifying the patient’s BMI) rather than using terms that could be offensive (for example, labeling the patient as “obese”).⁶ The shift to more empathetic note-taking could be seen less as a burden and more as a valuable tool in the shared decision-making endeavor: It could allow physicians to document both their clinical judgments and the patient’s values and preferences, which could lead to better medical decision-making.

Third, critics of open notes point to concerns about the burden it places on clinicians’ already limited time. The ONC rule requires automatic release of test results regardless of whether the clinician has had the opportunity to review them and offer their interpretation and insight. Because physician interpretation of results has known benefits,⁴ this puts additional pressure on clinicians to review results and enter notes in a timely manner. But physicians have reported that often open notes necessitates that they spend more time on documentation than they would otherwise.⁵

Despite critiques of open notes, the benefits of allowing patients access to their medical records have been repeatedly demonstrated. And research has shown that patients benefit from accessing open notes by allowing them to access and control their own personal medical information.⁵ Patients report that they understand and value the information provided to them in their medical records,⁷ and they feel empowered to participate in their medical decision-making. In surveys, patients report that reading their doctors’ notes is useful for taking care of their health and for remembering their care plans, understanding why a medication was prescribed, and reinforcing the need to take their medications and adhere to treatment plans.⁸

Importantly, open notes can increase patient engagement and patients’ trust in their physicians,⁹ thereby improving the doctor-patient relationship.³ And allowing patients to share their medical records with care partners enables supported decision-making, particularly for older and chronically ill individuals.³ Additionally, it is predicted that open notes may, in fact, decrease legal liability.⁹ By improving both trust in the doctor-patient relationship and safety, some experts expect that legal claims against clinicians will, in turn, decrease.¹⁰

The modern practice of medicine necessitates a more empathetic approach to clinical note-taking, even in the absence of regulation requiring it. As the regulations implementing the Cures Act roll out, patients will have easier, and more immediate, access to their medical records. Despite earlier hesitancy, clinicians are steadily beginning to support sharing access to notes with patients.⁵ Change can be hard. But the change expected of clinicians because of these new regulations appears to be less onerous than originally anticipated.

Prof. Koch is codirector of Health Law & Policy Institute and assistant professor at the University of Houston Law Center, as well as director of law and ethics at the MacLean Center for Clinical Medical Ethics at the University of Chicago. She has no disclosures.

This article was updated Sept. 9, 2021.

References

1. Fed Regist. 2020 May;85(85):25642-961.

2. The Petrie-Flom Center Staff. “New Rule Puts Medical Data in Patients’ Hands.” Bill of Health. July 12, 2021. Accessed August 30, 2021. https://blog.petrieflom.law.harvard.edu/2021/07/12/new-rule-puts-medical-data-in-patients-hands/.

3. Blease C et al. Ann Intern Med. 2021 Jan;174(1):101-2.

4. Pillemer F et al. PLoS One. 2016 Jun. doi: 10.1371/journal.pone.0154743.

5. DesRoches CM et al. JAMA Netw Open. 2020 Mar. doi: 10.1001/jamanetworkopen.2020.1753.

6. Heath S. “Most Patients Understand Clinical Notes, Patient Data Access.” Patient Engagement HIT. July 29, 2020. Accessed August 30, 2021. https://patientengagementhit.com/news/most-patients-understand-clinical-notes-patient-data-access

7. Leveille SG et al. J Gen Intern Med. 2020 Dec;35(12):3510-6.

8. Walker J et al. J Med Internet Res. 2019 May. doi: 10.2196/13876.

9. Bell SK et al. BMJ Qual Saf. 2017 Apr;26(4):262-70.

10. Kachalia A, Mello MM. N Engl J Med. 2011 Apr;364(16):1564-72.

In July, I had my annual physical with my primary care physician, whose practice is based out of a large urban academic medical center. As she concluded my visit and directed me to the lab to have my blood work done, she said, “You’ll be receiving an automatic notice from MyChart by 9 am tomorrow that your medical records from today’s visit are available. I apologize if I have not yet had the opportunity to review them and enter my note, but you’ll get access to all of that, as well, as soon as it is in the system.”

This sort of interaction is increasingly common across the United States as health care institutions implement policies and procedures to comply with new regulations promulgated by the Office of the National Coordinator for Health Information Technology (ONC), which went into effect on April 5, 2021. These rules were promulgated in accordance with the 21st Century Cures Act of 2016 (Cures Act).¹ The regulations, known as the Interoperability, Information Blocking, and the ONC Health IT Certification Program, implement provisions of the Cures Act intended to “support the access, exchange, and use of electronic health information.” The rule is considered a significant step in the “open notes” movement, which is intended to make health care more transparent by enabling patients to access their medical records. The drafters of the ONC regulations have carved out certain exceptions to the information blocking rule. For example, one exception allows some patient information to be withheld where making that information available might cause physical harm to the patient or another person.

Thus far, few patients have been informed about the new regulation.² By forbidding “information blocking,” the rule enables patients to more easily access and control their health information. Currently, the rule requires that physicians allow automatic access, without charge, to a patient’s own personal health information, including clinical notes, medication lists, laboratory results, and other diagnostic reports. Records must be provided “without delay,” or at least as soon as the physician’s office receives an electronic copy. In 2022, it will be required that access to even more of a patient’s personal electronic health record be provided in real-time through a patient portal and that electronic health information be shareable across third-party apps.

The Cures Act and the regulations governing its implementation highlight the inherent tension between two core principles of bioethical inquiry: autonomy and beneficence. The first principle, autonomy, champions allowing patient access and control over their own personal information. Beneficence, which is often expressed as paternalism, ensures that the experts are able to analyze and interpret data so that patients are in the best position to then make informed decisions.

With these principles in mind, arguments against open notes have generally fallen into three related categories. First, critics worry that immediate access to one’s medical record will increase patient anxiety caused by feelings of being inundated with complex medical information that patients may be ill-equipped to analyze and understand. This is a common refrain any time policies are implemented to improve medical information sharing. For example, critics of direct-to-consumer genetic testing caution that permitting unfettered access to complex information, particularly without an intermediary to interpret the data, could lead to confusion and poor medical choices.

There may be validity to this claim. One study found that 3% of patients reported feeling very confused when granted access to their medical notes.³ Another study concluded that direct release of medical test results “sometimes leads to unnecessary anxiety.”⁴ While the drafters of the ONC regulations have carved out certain exceptions to the information blocking rule, those exceptions do not allow for withholding of information because of concerns about patient anxiety or psychological harms.

The second common critique of open notes is that requiring release of all clinical notes will lead to clinician self-censorship, effectively muzzling or silencing the experts whose responsibility it is to objectively interpret results in order to provide the best care for their patients. Some have expressed concern that clinicians will be forced to “code” their records to avoid addressing “sensitive” subjects that might make patients feel offended or judged. This, in turn, might lead to less complete, reliable, or useful clinician communication.³

In fact, open notes has led to changes in the documentation process for some clinicians. They have reported modifying the way they document patient visits by changing their use of critical language and sensitive information.⁵ One study found that open notes led physicians to adjust “their language to avoid being perceived as critical of patients; omitting certain terms, such as ‘noncompliant’ and ‘patient denies’; and modifying how they document sensitive information.”³

In response, experts recommend focusing on precise and empathetic patient notes; in other words, the clinician should not write something in the note that they would not say directly to the patient. For example, they recommend that clinicians use precise language (for example, identifying the patient’s BMI) rather than using terms that could be offensive (for example, labeling the patient as “obese”).⁶ The shift to more empathetic note-taking could be seen less as a burden and more as a valuable tool in the shared decision-making endeavor: It could allow physicians to document both their clinical judgments and the patient’s values and preferences, which could lead to better medical decision-making.

Third, critics of open notes point to concerns about the burden it places on clinicians’ already limited time. The ONC rule requires automatic release of test results regardless of whether the clinician has had the opportunity to review them and offer their interpretation and insight. Because physician interpretation of results has known benefits,⁴ this puts additional pressure on clinicians to review results and enter notes in a timely manner. But physicians have reported that often open notes necessitates that they spend more time on documentation than they would otherwise.⁵

Despite critiques of open notes, the benefits of allowing patients access to their medical records have been repeatedly demonstrated. And research has shown that patients benefit from accessing open notes by allowing them to access and control their own personal medical information.⁵ Patients report that they understand and value the information provided to them in their medical records,⁷ and they feel empowered to participate in their medical decision-making. In surveys, patients report that reading their doctors’ notes is useful for taking care of their health and for remembering their care plans, understanding why a medication was prescribed, and reinforcing the need to take their medications and adhere to treatment plans.⁸

Importantly, open notes can increase patient engagement and patients’ trust in their physicians,⁹ thereby improving the doctor-patient relationship.³ And allowing patients to share their medical records with care partners enables supported decision-making, particularly for older and chronically ill individuals.³ Additionally, it is predicted that open notes may, in fact, decrease legal liability.⁹ By improving both trust in the doctor-patient relationship and safety, some experts expect that legal claims against clinicians will, in turn, decrease.¹⁰

The modern practice of medicine necessitates a more empathetic approach to clinical note-taking, even in the absence of regulation requiring it. As the regulations implementing the Cures Act roll out, patients will have easier, and more immediate, access to their medical records. Despite earlier hesitancy, clinicians are steadily beginning to support sharing access to notes with patients.⁵ Change can be hard. But the change expected of clinicians because of these new regulations appears to be less onerous than originally anticipated.

Prof. Koch is codirector of Health Law & Policy Institute and assistant professor at the University of Houston Law Center, as well as director of law and ethics at the MacLean Center for Clinical Medical Ethics at the University of Chicago. She has no disclosures.

This article was updated Sept. 9, 2021.

References

1. Fed Regist. 2020 May;85(85):25642-961.

2. The Petrie-Flom Center Staff. “New Rule Puts Medical Data in Patients’ Hands.” Bill of Health. July 12, 2021. Accessed August 30, 2021. https://blog.petrieflom.law.harvard.edu/2021/07/12/new-rule-puts-medical-data-in-patients-hands/.

3. Blease C et al. Ann Intern Med. 2021 Jan;174(1):101-2.

4. Pillemer F et al. PLoS One. 2016 Jun. doi: 10.1371/journal.pone.0154743.

5. DesRoches CM et al. JAMA Netw Open. 2020 Mar. doi: 10.1001/jamanetworkopen.2020.1753.

6. Heath S. “Most Patients Understand Clinical Notes, Patient Data Access.” Patient Engagement HIT. July 29, 2020. Accessed August 30, 2021. https://patientengagementhit.com/news/most-patients-understand-clinical-notes-patient-data-access

7. Leveille SG et al. J Gen Intern Med. 2020 Dec;35(12):3510-6.

8. Walker J et al. J Med Internet Res. 2019 May. doi: 10.2196/13876.

9. Bell SK et al. BMJ Qual Saf. 2017 Apr;26(4):262-70.

10. Kachalia A, Mello MM. N Engl J Med. 2011 Apr;364(16):1564-72.

The concept of home ownership has changed for this generation, not only in the logistics of the best way to do it, but also in the desire and demand for owning versus renting. According to the Penn Institute for Urban Research, the U.S. homeownership rate is now at 63.7%, the lowest in 48 years. “Homeownership rates have declined for all demographic age groups. Since 2006, the number of households who own their home in the United States has decreased by 674,000 while the number of renters has increased by over 8 million.”¹

But isn’t owning your own home the American dream? Isn’t it a great investment? If we’re looking strictly at the monthly payment numbers, traditionally paying a mortgage is cheaper than paying rent for the same-size home. That became even more true as home prices dropped in 2007-2008 and as interest rates also dropped over the last several years. Then there’s the age-old concept of “building equity” or “throwing away money on rent.” As a financial planner, I get asked all the time about a home as an investment. It certainly can be, like any investment, if you buy and sell at the right time. But something is only an investment if it grows, and you can’t predict if you’re going to buy and sell your house at the right time. The median price of an existing home sold in March 2021 was $329,100. That’s a 17.2% increase from March 2020. Times are certainly crazy right now in the real estate market.

What many people don’t think about are the other costs, and not just financial costs. Today’s generation is more aware of the added stress and burden of maintaining a home and the money you can sink into it for maintenance, let alone remodeling. Then of course there’s the mortgage interest, property taxes, and insurance that you won’t have with a rental. Lastly, the biggest reason today’s generation is choosing to rent more and more is the flexibility. They want to be more mobile, able to get up and move without having to worry about listing, selling, and possibly owing more than the house is worth, and being stuck. We saw this with many residents that bought a home during residency and then tried to sell when they landed their first job, only to find out they owed more than it was worth because of the real estate market collapse of 2008. Approximately 50% of physicians will leave their first job within 1-3 years, so it’s a gamble that you’ll be able to sell your house when you want to for the price you need.

But what are the benefits of buying? First, there is the age-old argument of building equity. If you stay in your house long enough, and plan to sell it when you retire and downsize, it can definitely be an investment. If you keep a mortgage long enough, eventually you’ll pay it off, and have no payment. Mortgage interest is also tax-deductible. Lastly, there are the intangibles – like being able to put down roots, build a community, and have the ability to remodel and customize your home, a feature not usually available when renting.

Now that I’ve effectively talked you out and back in again, what’s the best way to go about buying a house in today’s crazy market? We’ve seen houses list and sell within a day and get multiple offers well over asking price. It’s a very difficult time to buy, but there are ways to make it easier. First, be clear on what you want in a house, especially location. There’s nothing worse than buyer’s remorse in your primary residence, and that happens more these days when people have to quickly make a decision. Find a good, fee-based financial planner to help you decide how much house fits in your budget and your long-term goals. You’d be surprised how easily we can talk ourselves into paying much more than we had originally decided. Use your financial planner to help avoid emotions getting involved and creeping up your price (especially when multiple offers are involved). A good rule of thumb is for a housing payment to be no more than 33% of your take-home income. This includes principal, interest, and taxes. Or, many planners will use the “2x income” rule of thumb. So if you make $300,000, don’t go over $600,000. Although with today’s low interest rates, there is some more wiggle room on that. Next, get a good referral from someone you trust in looking for a realtor. Real estate is a commission-based job and can have some potential conflicts of interest, so getting a recommendation can help. Or, there are realtors who will work for a flat fee, regardless of how much you pay for a house. That can help reduce the conflict.

You made the offer, you beat out the other bids, and you’re getting a house! How are you paying for it? Hopefully, you already got preapproved. This means finding a good, reputable mortgage professional. Get referrals, shop around, and take your time. Get multiple quotes before you start the underwriting process. They shouldn’t have to pull your credit to give you a fairly accurate estimate of what interest rate you’ll qualify for. Usually, they will give you fixed and variable interest quotes. I normally recommend fixed interest. Because interest rates are so low right now, they’re only going to go up in the future, and if you have a variable rate loan, your payment will go up as interest rates rise.

Is a physician loan a good idea? Depending on your circumstance, it can often be a good deal. Most new attendings don’t have cash saved up for a down payment, and these often don’t require one. And the other big benefit is that they won’t consider your student loan payments when calculating your debt-to-income ratio. Mortgage lenders will look at how much other debt you have when determining an approval. And a conventional mortgage will take your student loan payments into consideration, which means you’ll qualify for a much lower payment and purchase price. In my experience, you want a credit score of around 700 or higher to qualify for these types of loans. The only downside of a physician mortgage is the rates are slightly higher. I encourage you to start the application process early; they’re taking upward of 90 days lately.

As the mortgage is being processed, you’ll have an inspection and appraisal, and as long as those are all favorable, you’re in! Now, should you take any surplus income each month and pay extra on your mortgage to pay it down sooner, or invest it? Everyone’s situation is different, but a good rule of thumb is to look at interest rates on the debt you want to pay off versus expected rate of return on the potential investment. For example, if you have extra money, should you invest it in an SP500 index fund that historically gets 8%-12% per year, or put it on the principal of your mortgage that has an interest rate of 3%? Assuming no other factors or goals, and you just want the best bang for your buck, my money would go toward the investment getting 8%-12% over saving 3% on my mortgage.

Take your time, do your research, and find good professionals. There’s no right answer for everyone, but there are certainly some good practices when walking through the first home decision. Here at FinancialMD, we only work with physicians, and we’re happy to chat if you want some guidance on this. Send me an email and subscribe to our weekly Didactic Minute videos on YouTube for more financial tips for young physicians. Good luck!

Mr. Solitro is a financial planner and CEO of FinancialMD. He has no other conflicts of interest.

Investment advisory services offered through FinancialMD, a registered investment adviser. Registration as an investment adviser does not imply a certain level of skill or training. This article is provided for informational purposes only and nothing contained herein should be construed as a solicitation to buy or sell any products. Advisory services are offered only to clients and prospective clients in places where FinancialMD and its investment adviser representatives are registered or exempt from registration. Investing involves the risk of loss of principal. Past performance is no guarantee of future performance and no investment strategy can guarantee a profit or protect against loss.

This article was updated June 8, 2021.

Reference

1. Wachter S and Acolin A. Owning or Renting in the US: Shifting Dynamics of the Housing Market. Penn Institute for Urban Research. 2016 May.

The concept of home ownership has changed for this generation, not only in the logistics of the best way to do it, but also in the desire and demand for owning versus renting. According to the Penn Institute for Urban Research, the U.S. homeownership rate is now at 63.7%, the lowest in 48 years. “Homeownership rates have declined for all demographic age groups. Since 2006, the number of households who own their home in the United States has decreased by 674,000 while the number of renters has increased by over 8 million.”¹

But isn’t owning your own home the American dream? Isn’t it a great investment? If we’re looking strictly at the monthly payment numbers, traditionally paying a mortgage is cheaper than paying rent for the same-size home. That became even more true as home prices dropped in 2007-2008 and as interest rates also dropped over the last several years. Then there’s the age-old concept of “building equity” or “throwing away money on rent.” As a financial planner, I get asked all the time about a home as an investment. It certainly can be, like any investment, if you buy and sell at the right time. But something is only an investment if it grows, and you can’t predict if you’re going to buy and sell your house at the right time. The median price of an existing home sold in March 2021 was $329,100. That’s a 17.2% increase from March 2020. Times are certainly crazy right now in the real estate market.

What many people don’t think about are the other costs, and not just financial costs. Today’s generation is more aware of the added stress and burden of maintaining a home and the money you can sink into it for maintenance, let alone remodeling. Then of course there’s the mortgage interest, property taxes, and insurance that you won’t have with a rental. Lastly, the biggest reason today’s generation is choosing to rent more and more is the flexibility. They want to be more mobile, able to get up and move without having to worry about listing, selling, and possibly owing more than the house is worth, and being stuck. We saw this with many residents that bought a home during residency and then tried to sell when they landed their first job, only to find out they owed more than it was worth because of the real estate market collapse of 2008. Approximately 50% of physicians will leave their first job within 1-3 years, so it’s a gamble that you’ll be able to sell your house when you want to for the price you need.

But what are the benefits of buying? First, there is the age-old argument of building equity. If you stay in your house long enough, and plan to sell it when you retire and downsize, it can definitely be an investment. If you keep a mortgage long enough, eventually you’ll pay it off, and have no payment. Mortgage interest is also tax-deductible. Lastly, there are the intangibles – like being able to put down roots, build a community, and have the ability to remodel and customize your home, a feature not usually available when renting.

Now that I’ve effectively talked you out and back in again, what’s the best way to go about buying a house in today’s crazy market? We’ve seen houses list and sell within a day and get multiple offers well over asking price. It’s a very difficult time to buy, but there are ways to make it easier. First, be clear on what you want in a house, especially location. There’s nothing worse than buyer’s remorse in your primary residence, and that happens more these days when people have to quickly make a decision. Find a good, fee-based financial planner to help you decide how much house fits in your budget and your long-term goals. You’d be surprised how easily we can talk ourselves into paying much more than we had originally decided. Use your financial planner to help avoid emotions getting involved and creeping up your price (especially when multiple offers are involved). A good rule of thumb is for a housing payment to be no more than 33% of your take-home income. This includes principal, interest, and taxes. Or, many planners will use the “2x income” rule of thumb. So if you make $300,000, don’t go over $600,000. Although with today’s low interest rates, there is some more wiggle room on that. Next, get a good referral from someone you trust in looking for a realtor. Real estate is a commission-based job and can have some potential conflicts of interest, so getting a recommendation can help. Or, there are realtors who will work for a flat fee, regardless of how much you pay for a house. That can help reduce the conflict.

You made the offer, you beat out the other bids, and you’re getting a house! How are you paying for it? Hopefully, you already got preapproved. This means finding a good, reputable mortgage professional. Get referrals, shop around, and take your time. Get multiple quotes before you start the underwriting process. They shouldn’t have to pull your credit to give you a fairly accurate estimate of what interest rate you’ll qualify for. Usually, they will give you fixed and variable interest quotes. I normally recommend fixed interest. Because interest rates are so low right now, they’re only going to go up in the future, and if you have a variable rate loan, your payment will go up as interest rates rise.

Is a physician loan a good idea? Depending on your circumstance, it can often be a good deal. Most new attendings don’t have cash saved up for a down payment, and these often don’t require one. And the other big benefit is that they won’t consider your student loan payments when calculating your debt-to-income ratio. Mortgage lenders will look at how much other debt you have when determining an approval. And a conventional mortgage will take your student loan payments into consideration, which means you’ll qualify for a much lower payment and purchase price. In my experience, you want a credit score of around 700 or higher to qualify for these types of loans. The only downside of a physician mortgage is the rates are slightly higher. I encourage you to start the application process early; they’re taking upward of 90 days lately.

As the mortgage is being processed, you’ll have an inspection and appraisal, and as long as those are all favorable, you’re in! Now, should you take any surplus income each month and pay extra on your mortgage to pay it down sooner, or invest it? Everyone’s situation is different, but a good rule of thumb is to look at interest rates on the debt you want to pay off versus expected rate of return on the potential investment. For example, if you have extra money, should you invest it in an SP500 index fund that historically gets 8%-12% per year, or put it on the principal of your mortgage that has an interest rate of 3%? Assuming no other factors or goals, and you just want the best bang for your buck, my money would go toward the investment getting 8%-12% over saving 3% on my mortgage.

Take your time, do your research, and find good professionals. There’s no right answer for everyone, but there are certainly some good practices when walking through the first home decision. Here at FinancialMD, we only work with physicians, and we’re happy to chat if you want some guidance on this. Send me an email and subscribe to our weekly Didactic Minute videos on YouTube for more financial tips for young physicians. Good luck!

Mr. Solitro is a financial planner and CEO of FinancialMD. He has no other conflicts of interest.

Investment advisory services offered through FinancialMD, a registered investment adviser. Registration as an investment adviser does not imply a certain level of skill or training. This article is provided for informational purposes only and nothing contained herein should be construed as a solicitation to buy or sell any products. Advisory services are offered only to clients and prospective clients in places where FinancialMD and its investment adviser representatives are registered or exempt from registration. Investing involves the risk of loss of principal. Past performance is no guarantee of future performance and no investment strategy can guarantee a profit or protect against loss.

This article was updated June 8, 2021.

Reference

1. Wachter S and Acolin A. Owning or Renting in the US: Shifting Dynamics of the Housing Market. Penn Institute for Urban Research. 2016 May.

The concept of home ownership has changed for this generation, not only in the logistics of the best way to do it, but also in the desire and demand for owning versus renting. According to the Penn Institute for Urban Research, the U.S. homeownership rate is now at 63.7%, the lowest in 48 years. “Homeownership rates have declined for all demographic age groups. Since 2006, the number of households who own their home in the United States has decreased by 674,000 while the number of renters has increased by over 8 million.”¹

But isn’t owning your own home the American dream? Isn’t it a great investment? If we’re looking strictly at the monthly payment numbers, traditionally paying a mortgage is cheaper than paying rent for the same-size home. That became even more true as home prices dropped in 2007-2008 and as interest rates also dropped over the last several years. Then there’s the age-old concept of “building equity” or “throwing away money on rent.” As a financial planner, I get asked all the time about a home as an investment. It certainly can be, like any investment, if you buy and sell at the right time. But something is only an investment if it grows, and you can’t predict if you’re going to buy and sell your house at the right time. The median price of an existing home sold in March 2021 was $329,100. That’s a 17.2% increase from March 2020. Times are certainly crazy right now in the real estate market.

What many people don’t think about are the other costs, and not just financial costs. Today’s generation is more aware of the added stress and burden of maintaining a home and the money you can sink into it for maintenance, let alone remodeling. Then of course there’s the mortgage interest, property taxes, and insurance that you won’t have with a rental. Lastly, the biggest reason today’s generation is choosing to rent more and more is the flexibility. They want to be more mobile, able to get up and move without having to worry about listing, selling, and possibly owing more than the house is worth, and being stuck. We saw this with many residents that bought a home during residency and then tried to sell when they landed their first job, only to find out they owed more than it was worth because of the real estate market collapse of 2008. Approximately 50% of physicians will leave their first job within 1-3 years, so it’s a gamble that you’ll be able to sell your house when you want to for the price you need.

But what are the benefits of buying? First, there is the age-old argument of building equity. If you stay in your house long enough, and plan to sell it when you retire and downsize, it can definitely be an investment. If you keep a mortgage long enough, eventually you’ll pay it off, and have no payment. Mortgage interest is also tax-deductible. Lastly, there are the intangibles – like being able to put down roots, build a community, and have the ability to remodel and customize your home, a feature not usually available when renting.

Now that I’ve effectively talked you out and back in again, what’s the best way to go about buying a house in today’s crazy market? We’ve seen houses list and sell within a day and get multiple offers well over asking price. It’s a very difficult time to buy, but there are ways to make it easier. First, be clear on what you want in a house, especially location. There’s nothing worse than buyer’s remorse in your primary residence, and that happens more these days when people have to quickly make a decision. Find a good, fee-based financial planner to help you decide how much house fits in your budget and your long-term goals. You’d be surprised how easily we can talk ourselves into paying much more than we had originally decided. Use your financial planner to help avoid emotions getting involved and creeping up your price (especially when multiple offers are involved). A good rule of thumb is for a housing payment to be no more than 33% of your take-home income. This includes principal, interest, and taxes. Or, many planners will use the “2x income” rule of thumb. So if you make $300,000, don’t go over $600,000. Although with today’s low interest rates, there is some more wiggle room on that. Next, get a good referral from someone you trust in looking for a realtor. Real estate is a commission-based job and can have some potential conflicts of interest, so getting a recommendation can help. Or, there are realtors who will work for a flat fee, regardless of how much you pay for a house. That can help reduce the conflict.

You made the offer, you beat out the other bids, and you’re getting a house! How are you paying for it? Hopefully, you already got preapproved. This means finding a good, reputable mortgage professional. Get referrals, shop around, and take your time. Get multiple quotes before you start the underwriting process. They shouldn’t have to pull your credit to give you a fairly accurate estimate of what interest rate you’ll qualify for. Usually, they will give you fixed and variable interest quotes. I normally recommend fixed interest. Because interest rates are so low right now, they’re only going to go up in the future, and if you have a variable rate loan, your payment will go up as interest rates rise.

Is a physician loan a good idea? Depending on your circumstance, it can often be a good deal. Most new attendings don’t have cash saved up for a down payment, and these often don’t require one. And the other big benefit is that they won’t consider your student loan payments when calculating your debt-to-income ratio. Mortgage lenders will look at how much other debt you have when determining an approval. And a conventional mortgage will take your student loan payments into consideration, which means you’ll qualify for a much lower payment and purchase price. In my experience, you want a credit score of around 700 or higher to qualify for these types of loans. The only downside of a physician mortgage is the rates are slightly higher. I encourage you to start the application process early; they’re taking upward of 90 days lately.

As the mortgage is being processed, you’ll have an inspection and appraisal, and as long as those are all favorable, you’re in! Now, should you take any surplus income each month and pay extra on your mortgage to pay it down sooner, or invest it? Everyone’s situation is different, but a good rule of thumb is to look at interest rates on the debt you want to pay off versus expected rate of return on the potential investment. For example, if you have extra money, should you invest it in an SP500 index fund that historically gets 8%-12% per year, or put it on the principal of your mortgage that has an interest rate of 3%? Assuming no other factors or goals, and you just want the best bang for your buck, my money would go toward the investment getting 8%-12% over saving 3% on my mortgage.

Take your time, do your research, and find good professionals. There’s no right answer for everyone, but there are certainly some good practices when walking through the first home decision. Here at FinancialMD, we only work with physicians, and we’re happy to chat if you want some guidance on this. Send me an email and subscribe to our weekly Didactic Minute videos on YouTube for more financial tips for young physicians. Good luck!

Mr. Solitro is a financial planner and CEO of FinancialMD. He has no other conflicts of interest.

Investment advisory services offered through FinancialMD, a registered investment adviser. Registration as an investment adviser does not imply a certain level of skill or training. This article is provided for informational purposes only and nothing contained herein should be construed as a solicitation to buy or sell any products. Advisory services are offered only to clients and prospective clients in places where FinancialMD and its investment adviser representatives are registered or exempt from registration. Investing involves the risk of loss of principal. Past performance is no guarantee of future performance and no investment strategy can guarantee a profit or protect against loss.

This article was updated June 8, 2021.

Reference

1. Wachter S and Acolin A. Owning or Renting in the US: Shifting Dynamics of the Housing Market. Penn Institute for Urban Research. 2016 May.

Disclaimer: This article is for educational purposes only. All examples are hypothetical and aim to illustrate common clinical scenarios and challenges gastroenterologists may encounter within their scope of practice. The content herein should not be interpreted as legal advice for individual cases nor a substitute for seeking the advice of an attorney.

There are unique potential stressors faced by the gastroenterologist at each career stage, some more so early on. One such stressor, and one particularly important in a procedure-intensive specialty like GI, is medical professional liability (MPL), historically termed “medical malpractice.” Between 2009 and 2018, GI was the second-highest internal medicine subspecialty in both MPL claims made and claims paid,¹ yet instruction on MPL risk and mitigation is scarce in fellowship, as is the available GI-related literature on the topic. This scarcity may generate untoward stress and unnecessarily expose gastroenterologists to avoidable MPL pitfalls. Therefore, it is vital for GI trainees, early-career gastroenterologists, and even seasoned gastroenterologists to have a working and updated knowledge of the general principles of MPL and GI-specific considerations. Such understanding can help preserve physician well-being, increase professional satisfaction, strengthen the doctor-patient relationship, and improve health care outcomes.²

To this end, we herein provide a focused review of the following: key MPL concepts, trends in MPL claims, GI-related MPL risk scenarios and considerations, adverse provider defensive mechanisms, documentation tenets, challenges posed by telemedicine, and the concept of “vicarious liability.”
 

Key MPL concepts

MPL falls under the umbrella of tort law, which itself falls under the umbrella of civil law; that is, civil (as opposed to criminal) justice governs torts – including but not limited to MPL claims – as well as other areas of law concerning noncriminal injury.³ A “tort” is a “civil wrong that unfairly causes another to experience loss or harm resulting in legal liability.”³ MPL claims assert the tort of negligence (similar to the concept of “incompetence”) and endeavor to compensate the harmed patient/individual while simultaneously dissuading suboptimal medical care by the provider in the future.^4,5 A successful MPL claim must prove four overlapping elements: that the tortfeasor (here, the gastroenterologist) owed a duty of care to the injured party and breached that duty, which caused damages.⁶ Given that MPL cases exist within tort law rather than criminal law, the burden of proof for these cases is not “beyond a reasonable doubt”; instead, it’s “to a reasonable medical probability.”⁷

Trends in MPL claims

According to data compiled by the MPL Association, 278,220 MPL claims were made in the United States from 1985 to 2012.^3,8-10 Among these, 1.8% involved gastroenterologists, which puts it at 17th place out of the 20 specialties surveyed.⁹ While the number of paid claims over this time frame decreased in GI by 34.6% (from 18.5 to 12.1 cases per 1,000 physician-years), there was a concurrent 23.3% increase in average claim compensation; essentially, there were fewer paid GI-related claims but there were higher payouts per paid claim.^11,12 From 2009 to 2018, average legal defense costs for paid GI-related claims were $97,392, and average paid amount was $330,876.¹

GI-related MPL risk scenarios and considerations

Many MPL claims relate to situations involving medical errors or adverse events (AEs), be they procedural or nonprocedural. However other aspects of GI also carry MPL risk.

Informed consent

MPL claims may be made not only on the grounds of inadequately informed consent but also inadequately informed refusal.^5,13,14 While standards for adequate informed consent vary by state, most states apply the “reasonable patient standard,” i.e., assuming an average patient with enough information to be an active participant in the medical decision-making process. Generally, informed consent should ensure that the patient understands the nature of the procedure/treatment being proposed, there is a discussion of the risks and benefits of undergoing and not undergoing the procedure/treatment, reasonable alternatives are presented, the risks and benefits associated with these alternatives are discussed, and the patient’s comprehension of these things is assessed (Figure).¹⁵ Additionally, informed consent should be tailored to each patient and GI procedure/treatment on a case-by-case basis rather than using a one-size-fits-all approach. Moreover, documentation of the patient’s understanding of the (tailored) information provided can concurrently improve quality of the consent and potentially decrease MPL risk (Figure).¹⁶

Endoscopic procedures

Procedure-related MPL claims represent approximately 25% of all GI-related claims (8,17). Among these, 52% involve colonoscopy, 16% involve endoscopic retrograde cholangiopancreatography (ERCP), and 11% involve esophagogastroduodenoscopy.⁸ Albeit generally safe, colonoscopy, as with esophagogastroduodenoscopy, is subject to rare but serious AEs.^18,19 Risk of these AEs may be accentuated in certain scenarios (such as severe colonic inflammation or coagulopathy) and, as discussed earlier, may merit tailored informed consent. Regardless of the procedure, in the event of postprocedural development of signs/symptoms (such as tachycardia, fever, chest or abdominal discomfort, or hypotension) indicating a potential AE, stabilizing measures and evaluation (such as blood work and imaging) should be undertaken, and hospital admission (if not already hospitalized) should be considered until discharge is deemed safe.¹⁹

ERCP-related MPL claims, for many years, have had the highest average compensation of any GI procedure.¹¹ Though discussion of advanced procedures is beyond the scope of this article, it is worth mentioning the observation that most of such claims involve an allegation that the procedure was not indicated (for example, that it was performed based on inadequate evidence of pancreatobiliary pathology), or was for diagnostic purposes (for example, being done instead of noninvasive imaging) rather than therapeutic.^20-23 This emphasizes the importance of appropriate procedure indications.

Percutaneous endoscopic gastrostomy (PEG) placement merits special mention given it can be complicated by ethical challenges (for example, needing a surrogate decision-maker’s consent or representing medical futility) and has a relatively high potential for MPL claims. PEG placement carries a low AE rate (0.1%-1%), but these AEs may result in high morbidity/mortality, in part because of the underlying comorbidities of patients needing PEG placement.^24,25 Also, timing of a patient’s demise may coincide with PEG placement, thereby prompting (possibly unfounded) perceptions of causality.^24-27 Therefore, such scenarios merit unique additional preprocedure safeguards. For instance, for patients lacking capacity to provide informed consent, especially when family members may differ on whether PEG should be placed, it is advisable to ask the family to select one surrogate decision-maker (if there’s no advance directive) to whom the gastroenterologist should discuss both the risks, benefits, and goals of PEG placement in the context of the patient’s overall clinical trajectory/life expectancy and the need for consent (or refusal) based on what the patient would have wished. In addition, having a medical professional witness this discussion may be useful.²⁷
 

Antithrombotic agents

Periprocedural management of antithrombotics, including anticoagulants and antiplatelets, can pose challenges for the gastroenterologist. While clinical practice guidelines exist to guide decision-making in this regard, the variables involved may extend beyond the expertise of the gastroenterologist.²⁸ For instance, in addition to the procedural risk for bleeding, the indication for antithrombotic therapy, risk of a thrombotic event, duration of action of the antithrombotic, and available bridging options should all be considered according to recommendations.^28,29 While requiring more time on the part of the gastroenterologist, the optimal periprocedural management of antithrombotic agents would usually involve discussion with the provider managing antithrombotic therapy to best conduct a risk-benefit assessment regarding if (and how long) the antithrombotic therapy should be held (Figure). This shared decision-making, which should also include the patient, may help decrease MPL risk and improve outcomes.

Provider defense mechanisms

Physicians may engage in various defensive behaviors in an attempt to mitigate MPL risk; however, these behaviors may, paradoxically, increase risk.^30,31

Assurance behaviors

Assurance behaviors refer to the practice of recommending or performing additional services (such as medications, imaging, procedures, and referrals) that are not clearly indicated.^2,30,31 Assurance behaviors are driven by fear of MPL risk and/or missing a potential diagnosis. Recent studies have estimated that more than 50% of gastroenterologists worldwide have performed additional invasive procedures without clear indications, and that nearly one-third of endoscopic procedures annually have questionable indications.^30,32 While assurance behaviors may seem likely to decrease MPL risk, overall, they may inadvertently increase AE and MPL risk, as well as health care expenditures.^3,30,32

Avoidance behaviors

Avoidance behaviors refer to providers avoiding participation in potentially high-risk clinical interventions (for example, the actual procedures), including those for which they are credentialed/certified proficient.^30,31 Two clinical scenarios that illustrate this behavior include the following: An advanced endoscopist credentialed to perform ERCP might refer a “high-risk” elderly patient with cholangitis to another provider to perform said ERCP or for percutaneous transhepatic drainage (in the absence of a clear benefit to such), or a gastroenterologist might refer a patient to interventional gastroenterology for resection of a large polyp even though gastroenterologists are usually proficient in this skill and may feel comfortable performing the resection themselves. Avoidance behaviors are driven by a fear of MPL risk and can have several negative consequences.³³ For example, patients may not receive indicated interventions. Additionally, patients may have to wait longer for an intervention because they are referred to another provider, which also increases potential for loss to follow-up.^2,30,31 This may be viewed as noncompliance with the standard of care, among other hazards, thereby increasing MPL risk.

Documentation tenets

Thorough documentation can decrease MPL risk, especially since it is often used as legal evidence.¹⁶ Documenting, for instance, preprocedure discussion of potential risk of AEs (such as bleeding or perforation) or procedural failure (for example, missed lesions)can protect gastroenterologists (Figure).¹⁶ While, as discussed previously, these should be covered in the informed consent process (which itself reduces MPL risk), proof of compliance in providing adequate informed consent must come in the form of documentation that indicates that the process took place and specifically what topics were discussed therein. MPL risk may be further decreased by documenting steps taken during a procedure and anatomic landmarks encountered to offer proof of technical competency and compliance with standards of care (Figure).^16,34 In this context, it is worth recalling the adage: “If it’s not documented, it did not occur.”

Curbside consults versus consultation

Also germane here is the topic of whether documentation is needed for “curbside consults.” The uncertainty is, in part, semantic; that is, at what point does a “curbside” become a consultation? A curbside is a general question or query (such as anything that could also be answered by searching the Internet or reference materials) in response to which information is provided; once it involves provision of medical advice for a specific patient (for example, when patient identifiers have been shared or their EHR has been accessed), it constitutes a consultation. Based on these definitions, a curbside need not be documented, whereas a consultation – even if seemingly trivial – should be.

Consideration of language and cultural factors

Language barriers should be considered when the gastroenterologist is communicating with the patient, and such efforts, whenever made, should be documented to best protect against MPL.^16,35 These considerations arise not only during the consent process but when obtaining a history, providing postprocedure instructions, and during follow-ups. To this end, 24/7 telephone interpreter services may assist the gastroenterologist (when one is communicating with non–English speakers and is not medically certified in the patient’s native/preferred language) and strengthen trust in the provider-patient relationship.³⁶ Additionally, written materials (such as consent forms, procedural information) in patients’ native/preferred languages should be provided, when available, to enhance patient understanding and participation in care (Figure).³⁵

Challenges posed by telemedicine

The COVID-19 pandemic has rapidly led to more virtual encounters. While increased utilization of telemedicine platforms may make health care more accessible, it does not lessen the clinicians’ duty to patients and may actually expose them to greater MPL risk.^18,37,38 Therefore, the provider must be cognizant of two key principles to mitigate MPL risk in the context of telemedicine encounters. First, the same standard of care applies to virtual and in-person encounters.^18,37,38 Second, patient privacy and HIPAA regulations are not waived during telemedicine encounters, and breaches of such may result in an MPL claim.^18,37,38

With regard to the first principle, for patients who have not been physically examined (such as when a telemedicine visit was substituted for an in-person clinic encounter), gastroenterologists should not overlook requesting timely preprocedure anesthesia consultation or obtaining additional laboratory studies as needed to ensure safety and the same standard of care. Moreover, particularly in the context of pandemic-related decreased procedural capacity, triaging procedures can be especially challenging. Standardized institutional criteria which prioritize certain diagnoses/conditions over others, leaving room for justifiable exceptions, are advisable.
 

Vicarious liability

“Vicarious liability” is defined as that extending to persons who have not committed a wrong but on whose behalf wrongdoers acted.³⁹ Therefore, gastroenterologists may be liable not only for their own actions but also for those of personnel they supervise (such as fellow trainees and non–physician practitioners).³⁹ Vicarious liability aims to ensure that systemic checks and balances are in place so that, if failure occurs, harm can still be mitigated and/or avoided, as illustrated by Reason’s “Swiss Cheese Model.”⁴⁰

Conclusion

Any gastroenterologist can experience an MPL claim. Such an experience can be especially stressful and confusing to early-career clinicians, especially if they’re unfamiliar with legal proceedings. Although MPL principles are not often taught in medical school or residency, it is important for gastroenterologists to be informed regarding tenets of MPL and cognizant of clinical situations which have relatively higher MPL risk. This can assuage untoward angst regarding MPL and highlight proactive risk-mitigation strategies. In general, gastroenterologist practices that can mitigate MPL risk include effective communication; adequate informed consent/refusal; documentation of preprocedure counseling, periprocedure events, and postprocedure recommendations; and maintenance of proper certification and privileging.

Dr. Azizian and Dr. Dalai are with the University of California, Los Angeles and the department of medicine at Olive View–UCLA Medical Center, Sylmar, Calif. They are co–first authors of this paper. Dr. Dalai is also with the division of gastroenterology at the University of New Mexico, Albuquerque. Dr. Adams is with the Center for Clinical Management Research in Veterans Affairs Ann Arbor Healthcare System, the division of gastroenterology at the University of Michigan Health System, and the Institute for Healthcare Policy and Innovation, all in Ann Arbor, Mich. Dr. Tabibian is with UCLA and the division of gastroenterology at Olive View–UCLA Medical Center. The authors have no conflicts of interest.

References

1. 2020 Data Sharing Project Gastroenterology 2009-2018. Inside Medical Liability: Second Quarter. Accessed 2020 Dec 6.

2. Mello MM et al. Health Aff (Millwood). 2004 Jul-Aug;23(4):42-53.

3. Adams MA et al. JAMA. 2014 Oct;312(13):1348-9.

4. Pegalis SE. American Law of Medical Malpractice 3d, Vol. 2. St. Paul, Minn.: Thomson Reuters, 2005.

5. Feld LD et al. Am J Gastroenterol. 2018 Nov;113(11):1577-9.

6. Sawyer v. Wight, 196 F. Supp. 2d 220, 226 (E.D.N.Y. 2002).

7. Michael A. Sita v. Long Island Jewish-Hillside Medical Center, 22 A.D.3d 743 (N.Y. App. Div. 2005).

8. Conklin LS et al. Clin Gastroenterol Hepatol. 2008 Jun;6(6):677-81.

9. Jena AB et al. N Engl J Med. 2011 Aug 18;365(7):629-36.

10. Kane CK. “Policy Research Perspectives Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians.” Chicago: American Medical Association, 2010.

11. Hernandez LV et al. World J Gastrointest Endosc. 2013 Apr 16;5(4):169-73.

12. Schaffer AC et al. JAMA Intern Med. 2017 May 1;177(5):710-8.

13. Natanson v. Kline, 186 Kan. 393, 409, 350 P.2d 1093, 1106, decision clarified on denial of reh’g, 187 Kan. 186, 354 P.2d 670 (1960).

14. Truman v. Thomas, 27 Cal. 3d 285, 292, 611 P.2d 902, 906 (1980).

15. Shah P et al. Informed Consent, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Aug 22.

16. Rex DK. Clin Gastroenterol Hepatol. 2013 Jul;11(7):768-73.

17. Gerstenberger PD, Plumeri PA. Gastrointest Endosc. Mar-Apr 1993;39(2):132-8.

18. Adams MA and Allen JI. Clin Gastroenterol Hepatol. 2019 Nov;17(12):2392-6.e1.

19. Ahlawat R et al. Esophagogastroduodenoscopy, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Dec 9.

20. Cotton PB. Gastrointest Endosc. 2006 Mar;63(3):378-82.

21. Cotton PB. Gastrointest Endosc. 2010 Oct;72(4):904.

22. Adamson TE et al. West J Med. 1989 Mar;150(3):356-60.

23. Trap R et al. Endoscopy. 1999 Feb;31(2):125-30.

24. Funaki B. Semin Intervent Radiol. 2015 Mar;32(1):61-4.

25. Feeding Tube Nursing Home and Hospital Malpractice. Miller & Zois, Attorneys at Law. Accessed 2020 Jun 20.

26. Medical Malpractice Lawsuit Brings $750,000 Settlement: Death of 82-year-old woman from sepsis due to improper placement of feeding tube. Lubin & Meyers PC. Accessed 2020 Jun 20.

27. Brendel RW et al. Med Clin North Am. 2010 Nov;94(6):1229-40, xi-ii.

28. ASGE Standards of Practice Committee; Acosta RD et al. Gastrointest Endosc. 2016 Jan;83(1):3-16.

29. Saleem S and Thomas AL. Cureus. 2018 Jun 25;10(6):e2878.

30. Hiyama T et al. World J Gastroenterol. 2006 Dec 21;12(47):7671-5.

31. Studdert DM et al. JAMA. 2005 Jun 1;293(21):2609-17.

32. Shaheen NJ et al. Gastroenterology. 2018 May;154(7):1993-2003.

33. Oza VM et al. Clin Gastroenterol Hepatol. 2016 Feb;14(2):172-4.

34. Feld AD. Gastrointest Endosc Clin N Am. 2002 Jan;12(1):171-9, viii-ix.

35. Lee JS et al. J Gen Intern Med. 2017 Aug;32(8):863-70.

36. Forrow L and Kontrimas JC. J Gen Intern Med. 2017 Aug;32(8):855-7.

37. Moses RE et al. Am J Gastroenterol. 2014 Aug;109(8):1128-32.

38. Tabibian JH. “The Evolution of Telehealth.” Guidepoint: Legal Solutions Blog. Accessed 2020 Aug 12.

39. Feld AD. Am J Gastroenterol. 2004 Sep;99(9):1641-4.

40. Reason J. BMJ. 2000;320(7237):768‐70.

Disclaimer: This article is for educational purposes only. All examples are hypothetical and aim to illustrate common clinical scenarios and challenges gastroenterologists may encounter within their scope of practice. The content herein should not be interpreted as legal advice for individual cases nor a substitute for seeking the advice of an attorney.

There are unique potential stressors faced by the gastroenterologist at each career stage, some more so early on. One such stressor, and one particularly important in a procedure-intensive specialty like GI, is medical professional liability (MPL), historically termed “medical malpractice.” Between 2009 and 2018, GI was the second-highest internal medicine subspecialty in both MPL claims made and claims paid,¹ yet instruction on MPL risk and mitigation is scarce in fellowship, as is the available GI-related literature on the topic. This scarcity may generate untoward stress and unnecessarily expose gastroenterologists to avoidable MPL pitfalls. Therefore, it is vital for GI trainees, early-career gastroenterologists, and even seasoned gastroenterologists to have a working and updated knowledge of the general principles of MPL and GI-specific considerations. Such understanding can help preserve physician well-being, increase professional satisfaction, strengthen the doctor-patient relationship, and improve health care outcomes.²

To this end, we herein provide a focused review of the following: key MPL concepts, trends in MPL claims, GI-related MPL risk scenarios and considerations, adverse provider defensive mechanisms, documentation tenets, challenges posed by telemedicine, and the concept of “vicarious liability.”
 

Key MPL concepts

MPL falls under the umbrella of tort law, which itself falls under the umbrella of civil law; that is, civil (as opposed to criminal) justice governs torts – including but not limited to MPL claims – as well as other areas of law concerning noncriminal injury.³ A “tort” is a “civil wrong that unfairly causes another to experience loss or harm resulting in legal liability.”³ MPL claims assert the tort of negligence (similar to the concept of “incompetence”) and endeavor to compensate the harmed patient/individual while simultaneously dissuading suboptimal medical care by the provider in the future.^4,5 A successful MPL claim must prove four overlapping elements: that the tortfeasor (here, the gastroenterologist) owed a duty of care to the injured party and breached that duty, which caused damages.⁶ Given that MPL cases exist within tort law rather than criminal law, the burden of proof for these cases is not “beyond a reasonable doubt”; instead, it’s “to a reasonable medical probability.”⁷

Trends in MPL claims

According to data compiled by the MPL Association, 278,220 MPL claims were made in the United States from 1985 to 2012.^3,8-10 Among these, 1.8% involved gastroenterologists, which puts it at 17th place out of the 20 specialties surveyed.⁹ While the number of paid claims over this time frame decreased in GI by 34.6% (from 18.5 to 12.1 cases per 1,000 physician-years), there was a concurrent 23.3% increase in average claim compensation; essentially, there were fewer paid GI-related claims but there were higher payouts per paid claim.^11,12 From 2009 to 2018, average legal defense costs for paid GI-related claims were $97,392, and average paid amount was $330,876.¹

GI-related MPL risk scenarios and considerations

Many MPL claims relate to situations involving medical errors or adverse events (AEs), be they procedural or nonprocedural. However other aspects of GI also carry MPL risk.

Informed consent

MPL claims may be made not only on the grounds of inadequately informed consent but also inadequately informed refusal.^5,13,14 While standards for adequate informed consent vary by state, most states apply the “reasonable patient standard,” i.e., assuming an average patient with enough information to be an active participant in the medical decision-making process. Generally, informed consent should ensure that the patient understands the nature of the procedure/treatment being proposed, there is a discussion of the risks and benefits of undergoing and not undergoing the procedure/treatment, reasonable alternatives are presented, the risks and benefits associated with these alternatives are discussed, and the patient’s comprehension of these things is assessed (Figure).¹⁵ Additionally, informed consent should be tailored to each patient and GI procedure/treatment on a case-by-case basis rather than using a one-size-fits-all approach. Moreover, documentation of the patient’s understanding of the (tailored) information provided can concurrently improve quality of the consent and potentially decrease MPL risk (Figure).¹⁶

Endoscopic procedures

Procedure-related MPL claims represent approximately 25% of all GI-related claims (8,17). Among these, 52% involve colonoscopy, 16% involve endoscopic retrograde cholangiopancreatography (ERCP), and 11% involve esophagogastroduodenoscopy.⁸ Albeit generally safe, colonoscopy, as with esophagogastroduodenoscopy, is subject to rare but serious AEs.^18,19 Risk of these AEs may be accentuated in certain scenarios (such as severe colonic inflammation or coagulopathy) and, as discussed earlier, may merit tailored informed consent. Regardless of the procedure, in the event of postprocedural development of signs/symptoms (such as tachycardia, fever, chest or abdominal discomfort, or hypotension) indicating a potential AE, stabilizing measures and evaluation (such as blood work and imaging) should be undertaken, and hospital admission (if not already hospitalized) should be considered until discharge is deemed safe.¹⁹

ERCP-related MPL claims, for many years, have had the highest average compensation of any GI procedure.¹¹ Though discussion of advanced procedures is beyond the scope of this article, it is worth mentioning the observation that most of such claims involve an allegation that the procedure was not indicated (for example, that it was performed based on inadequate evidence of pancreatobiliary pathology), or was for diagnostic purposes (for example, being done instead of noninvasive imaging) rather than therapeutic.^20-23 This emphasizes the importance of appropriate procedure indications.

Percutaneous endoscopic gastrostomy (PEG) placement merits special mention given it can be complicated by ethical challenges (for example, needing a surrogate decision-maker’s consent or representing medical futility) and has a relatively high potential for MPL claims. PEG placement carries a low AE rate (0.1%-1%), but these AEs may result in high morbidity/mortality, in part because of the underlying comorbidities of patients needing PEG placement.^24,25 Also, timing of a patient’s demise may coincide with PEG placement, thereby prompting (possibly unfounded) perceptions of causality.^24-27 Therefore, such scenarios merit unique additional preprocedure safeguards. For instance, for patients lacking capacity to provide informed consent, especially when family members may differ on whether PEG should be placed, it is advisable to ask the family to select one surrogate decision-maker (if there’s no advance directive) to whom the gastroenterologist should discuss both the risks, benefits, and goals of PEG placement in the context of the patient’s overall clinical trajectory/life expectancy and the need for consent (or refusal) based on what the patient would have wished. In addition, having a medical professional witness this discussion may be useful.²⁷
 

Antithrombotic agents

Periprocedural management of antithrombotics, including anticoagulants and antiplatelets, can pose challenges for the gastroenterologist. While clinical practice guidelines exist to guide decision-making in this regard, the variables involved may extend beyond the expertise of the gastroenterologist.²⁸ For instance, in addition to the procedural risk for bleeding, the indication for antithrombotic therapy, risk of a thrombotic event, duration of action of the antithrombotic, and available bridging options should all be considered according to recommendations.^28,29 While requiring more time on the part of the gastroenterologist, the optimal periprocedural management of antithrombotic agents would usually involve discussion with the provider managing antithrombotic therapy to best conduct a risk-benefit assessment regarding if (and how long) the antithrombotic therapy should be held (Figure). This shared decision-making, which should also include the patient, may help decrease MPL risk and improve outcomes.

Provider defense mechanisms

Physicians may engage in various defensive behaviors in an attempt to mitigate MPL risk; however, these behaviors may, paradoxically, increase risk.^30,31

Assurance behaviors

Assurance behaviors refer to the practice of recommending or performing additional services (such as medications, imaging, procedures, and referrals) that are not clearly indicated.^2,30,31 Assurance behaviors are driven by fear of MPL risk and/or missing a potential diagnosis. Recent studies have estimated that more than 50% of gastroenterologists worldwide have performed additional invasive procedures without clear indications, and that nearly one-third of endoscopic procedures annually have questionable indications.^30,32 While assurance behaviors may seem likely to decrease MPL risk, overall, they may inadvertently increase AE and MPL risk, as well as health care expenditures.^3,30,32

Avoidance behaviors

Avoidance behaviors refer to providers avoiding participation in potentially high-risk clinical interventions (for example, the actual procedures), including those for which they are credentialed/certified proficient.^30,31 Two clinical scenarios that illustrate this behavior include the following: An advanced endoscopist credentialed to perform ERCP might refer a “high-risk” elderly patient with cholangitis to another provider to perform said ERCP or for percutaneous transhepatic drainage (in the absence of a clear benefit to such), or a gastroenterologist might refer a patient to interventional gastroenterology for resection of a large polyp even though gastroenterologists are usually proficient in this skill and may feel comfortable performing the resection themselves. Avoidance behaviors are driven by a fear of MPL risk and can have several negative consequences.³³ For example, patients may not receive indicated interventions. Additionally, patients may have to wait longer for an intervention because they are referred to another provider, which also increases potential for loss to follow-up.^2,30,31 This may be viewed as noncompliance with the standard of care, among other hazards, thereby increasing MPL risk.

Documentation tenets

Thorough documentation can decrease MPL risk, especially since it is often used as legal evidence.¹⁶ Documenting, for instance, preprocedure discussion of potential risk of AEs (such as bleeding or perforation) or procedural failure (for example, missed lesions)can protect gastroenterologists (Figure).¹⁶ While, as discussed previously, these should be covered in the informed consent process (which itself reduces MPL risk), proof of compliance in providing adequate informed consent must come in the form of documentation that indicates that the process took place and specifically what topics were discussed therein. MPL risk may be further decreased by documenting steps taken during a procedure and anatomic landmarks encountered to offer proof of technical competency and compliance with standards of care (Figure).^16,34 In this context, it is worth recalling the adage: “If it’s not documented, it did not occur.”

Curbside consults versus consultation

Also germane here is the topic of whether documentation is needed for “curbside consults.” The uncertainty is, in part, semantic; that is, at what point does a “curbside” become a consultation? A curbside is a general question or query (such as anything that could also be answered by searching the Internet or reference materials) in response to which information is provided; once it involves provision of medical advice for a specific patient (for example, when patient identifiers have been shared or their EHR has been accessed), it constitutes a consultation. Based on these definitions, a curbside need not be documented, whereas a consultation – even if seemingly trivial – should be.

Consideration of language and cultural factors

Language barriers should be considered when the gastroenterologist is communicating with the patient, and such efforts, whenever made, should be documented to best protect against MPL.^16,35 These considerations arise not only during the consent process but when obtaining a history, providing postprocedure instructions, and during follow-ups. To this end, 24/7 telephone interpreter services may assist the gastroenterologist (when one is communicating with non–English speakers and is not medically certified in the patient’s native/preferred language) and strengthen trust in the provider-patient relationship.³⁶ Additionally, written materials (such as consent forms, procedural information) in patients’ native/preferred languages should be provided, when available, to enhance patient understanding and participation in care (Figure).³⁵

Challenges posed by telemedicine

The COVID-19 pandemic has rapidly led to more virtual encounters. While increased utilization of telemedicine platforms may make health care more accessible, it does not lessen the clinicians’ duty to patients and may actually expose them to greater MPL risk.^18,37,38 Therefore, the provider must be cognizant of two key principles to mitigate MPL risk in the context of telemedicine encounters. First, the same standard of care applies to virtual and in-person encounters.^18,37,38 Second, patient privacy and HIPAA regulations are not waived during telemedicine encounters, and breaches of such may result in an MPL claim.^18,37,38

With regard to the first principle, for patients who have not been physically examined (such as when a telemedicine visit was substituted for an in-person clinic encounter), gastroenterologists should not overlook requesting timely preprocedure anesthesia consultation or obtaining additional laboratory studies as needed to ensure safety and the same standard of care. Moreover, particularly in the context of pandemic-related decreased procedural capacity, triaging procedures can be especially challenging. Standardized institutional criteria which prioritize certain diagnoses/conditions over others, leaving room for justifiable exceptions, are advisable.
 

Vicarious liability

“Vicarious liability” is defined as that extending to persons who have not committed a wrong but on whose behalf wrongdoers acted.³⁹ Therefore, gastroenterologists may be liable not only for their own actions but also for those of personnel they supervise (such as fellow trainees and non–physician practitioners).³⁹ Vicarious liability aims to ensure that systemic checks and balances are in place so that, if failure occurs, harm can still be mitigated and/or avoided, as illustrated by Reason’s “Swiss Cheese Model.”⁴⁰

Conclusion

Any gastroenterologist can experience an MPL claim. Such an experience can be especially stressful and confusing to early-career clinicians, especially if they’re unfamiliar with legal proceedings. Although MPL principles are not often taught in medical school or residency, it is important for gastroenterologists to be informed regarding tenets of MPL and cognizant of clinical situations which have relatively higher MPL risk. This can assuage untoward angst regarding MPL and highlight proactive risk-mitigation strategies. In general, gastroenterologist practices that can mitigate MPL risk include effective communication; adequate informed consent/refusal; documentation of preprocedure counseling, periprocedure events, and postprocedure recommendations; and maintenance of proper certification and privileging.

Dr. Azizian and Dr. Dalai are with the University of California, Los Angeles and the department of medicine at Olive View–UCLA Medical Center, Sylmar, Calif. They are co–first authors of this paper. Dr. Dalai is also with the division of gastroenterology at the University of New Mexico, Albuquerque. Dr. Adams is with the Center for Clinical Management Research in Veterans Affairs Ann Arbor Healthcare System, the division of gastroenterology at the University of Michigan Health System, and the Institute for Healthcare Policy and Innovation, all in Ann Arbor, Mich. Dr. Tabibian is with UCLA and the division of gastroenterology at Olive View–UCLA Medical Center. The authors have no conflicts of interest.

References

1. 2020 Data Sharing Project Gastroenterology 2009-2018. Inside Medical Liability: Second Quarter. Accessed 2020 Dec 6.

2. Mello MM et al. Health Aff (Millwood). 2004 Jul-Aug;23(4):42-53.

3. Adams MA et al. JAMA. 2014 Oct;312(13):1348-9.

4. Pegalis SE. American Law of Medical Malpractice 3d, Vol. 2. St. Paul, Minn.: Thomson Reuters, 2005.

5. Feld LD et al. Am J Gastroenterol. 2018 Nov;113(11):1577-9.

6. Sawyer v. Wight, 196 F. Supp. 2d 220, 226 (E.D.N.Y. 2002).

7. Michael A. Sita v. Long Island Jewish-Hillside Medical Center, 22 A.D.3d 743 (N.Y. App. Div. 2005).

8. Conklin LS et al. Clin Gastroenterol Hepatol. 2008 Jun;6(6):677-81.

9. Jena AB et al. N Engl J Med. 2011 Aug 18;365(7):629-36.

10. Kane CK. “Policy Research Perspectives Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians.” Chicago: American Medical Association, 2010.

11. Hernandez LV et al. World J Gastrointest Endosc. 2013 Apr 16;5(4):169-73.

12. Schaffer AC et al. JAMA Intern Med. 2017 May 1;177(5):710-8.

13. Natanson v. Kline, 186 Kan. 393, 409, 350 P.2d 1093, 1106, decision clarified on denial of reh’g, 187 Kan. 186, 354 P.2d 670 (1960).

14. Truman v. Thomas, 27 Cal. 3d 285, 292, 611 P.2d 902, 906 (1980).

15. Shah P et al. Informed Consent, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Aug 22.

16. Rex DK. Clin Gastroenterol Hepatol. 2013 Jul;11(7):768-73.

17. Gerstenberger PD, Plumeri PA. Gastrointest Endosc. Mar-Apr 1993;39(2):132-8.

18. Adams MA and Allen JI. Clin Gastroenterol Hepatol. 2019 Nov;17(12):2392-6.e1.

19. Ahlawat R et al. Esophagogastroduodenoscopy, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Dec 9.

20. Cotton PB. Gastrointest Endosc. 2006 Mar;63(3):378-82.

21. Cotton PB. Gastrointest Endosc. 2010 Oct;72(4):904.

22. Adamson TE et al. West J Med. 1989 Mar;150(3):356-60.

23. Trap R et al. Endoscopy. 1999 Feb;31(2):125-30.

24. Funaki B. Semin Intervent Radiol. 2015 Mar;32(1):61-4.

25. Feeding Tube Nursing Home and Hospital Malpractice. Miller & Zois, Attorneys at Law. Accessed 2020 Jun 20.

26. Medical Malpractice Lawsuit Brings $750,000 Settlement: Death of 82-year-old woman from sepsis due to improper placement of feeding tube. Lubin & Meyers PC. Accessed 2020 Jun 20.

27. Brendel RW et al. Med Clin North Am. 2010 Nov;94(6):1229-40, xi-ii.

28. ASGE Standards of Practice Committee; Acosta RD et al. Gastrointest Endosc. 2016 Jan;83(1):3-16.

29. Saleem S and Thomas AL. Cureus. 2018 Jun 25;10(6):e2878.

30. Hiyama T et al. World J Gastroenterol. 2006 Dec 21;12(47):7671-5.

31. Studdert DM et al. JAMA. 2005 Jun 1;293(21):2609-17.

32. Shaheen NJ et al. Gastroenterology. 2018 May;154(7):1993-2003.

33. Oza VM et al. Clin Gastroenterol Hepatol. 2016 Feb;14(2):172-4.

34. Feld AD. Gastrointest Endosc Clin N Am. 2002 Jan;12(1):171-9, viii-ix.

35. Lee JS et al. J Gen Intern Med. 2017 Aug;32(8):863-70.

36. Forrow L and Kontrimas JC. J Gen Intern Med. 2017 Aug;32(8):855-7.

37. Moses RE et al. Am J Gastroenterol. 2014 Aug;109(8):1128-32.

38. Tabibian JH. “The Evolution of Telehealth.” Guidepoint: Legal Solutions Blog. Accessed 2020 Aug 12.

39. Feld AD. Am J Gastroenterol. 2004 Sep;99(9):1641-4.

40. Reason J. BMJ. 2000;320(7237):768‐70.

Disclaimer: This article is for educational purposes only. All examples are hypothetical and aim to illustrate common clinical scenarios and challenges gastroenterologists may encounter within their scope of practice. The content herein should not be interpreted as legal advice for individual cases nor a substitute for seeking the advice of an attorney.

There are unique potential stressors faced by the gastroenterologist at each career stage, some more so early on. One such stressor, and one particularly important in a procedure-intensive specialty like GI, is medical professional liability (MPL), historically termed “medical malpractice.” Between 2009 and 2018, GI was the second-highest internal medicine subspecialty in both MPL claims made and claims paid,¹ yet instruction on MPL risk and mitigation is scarce in fellowship, as is the available GI-related literature on the topic. This scarcity may generate untoward stress and unnecessarily expose gastroenterologists to avoidable MPL pitfalls. Therefore, it is vital for GI trainees, early-career gastroenterologists, and even seasoned gastroenterologists to have a working and updated knowledge of the general principles of MPL and GI-specific considerations. Such understanding can help preserve physician well-being, increase professional satisfaction, strengthen the doctor-patient relationship, and improve health care outcomes.²

To this end, we herein provide a focused review of the following: key MPL concepts, trends in MPL claims, GI-related MPL risk scenarios and considerations, adverse provider defensive mechanisms, documentation tenets, challenges posed by telemedicine, and the concept of “vicarious liability.”
 

Key MPL concepts

MPL falls under the umbrella of tort law, which itself falls under the umbrella of civil law; that is, civil (as opposed to criminal) justice governs torts – including but not limited to MPL claims – as well as other areas of law concerning noncriminal injury.³ A “tort” is a “civil wrong that unfairly causes another to experience loss or harm resulting in legal liability.”³ MPL claims assert the tort of negligence (similar to the concept of “incompetence”) and endeavor to compensate the harmed patient/individual while simultaneously dissuading suboptimal medical care by the provider in the future.^4,5 A successful MPL claim must prove four overlapping elements: that the tortfeasor (here, the gastroenterologist) owed a duty of care to the injured party and breached that duty, which caused damages.⁶ Given that MPL cases exist within tort law rather than criminal law, the burden of proof for these cases is not “beyond a reasonable doubt”; instead, it’s “to a reasonable medical probability.”⁷

Trends in MPL claims

According to data compiled by the MPL Association, 278,220 MPL claims were made in the United States from 1985 to 2012.^3,8-10 Among these, 1.8% involved gastroenterologists, which puts it at 17th place out of the 20 specialties surveyed.⁹ While the number of paid claims over this time frame decreased in GI by 34.6% (from 18.5 to 12.1 cases per 1,000 physician-years), there was a concurrent 23.3% increase in average claim compensation; essentially, there were fewer paid GI-related claims but there were higher payouts per paid claim.^11,12 From 2009 to 2018, average legal defense costs for paid GI-related claims were $97,392, and average paid amount was $330,876.¹

GI-related MPL risk scenarios and considerations

Many MPL claims relate to situations involving medical errors or adverse events (AEs), be they procedural or nonprocedural. However other aspects of GI also carry MPL risk.

Informed consent

MPL claims may be made not only on the grounds of inadequately informed consent but also inadequately informed refusal.^5,13,14 While standards for adequate informed consent vary by state, most states apply the “reasonable patient standard,” i.e., assuming an average patient with enough information to be an active participant in the medical decision-making process. Generally, informed consent should ensure that the patient understands the nature of the procedure/treatment being proposed, there is a discussion of the risks and benefits of undergoing and not undergoing the procedure/treatment, reasonable alternatives are presented, the risks and benefits associated with these alternatives are discussed, and the patient’s comprehension of these things is assessed (Figure).¹⁵ Additionally, informed consent should be tailored to each patient and GI procedure/treatment on a case-by-case basis rather than using a one-size-fits-all approach. Moreover, documentation of the patient’s understanding of the (tailored) information provided can concurrently improve quality of the consent and potentially decrease MPL risk (Figure).¹⁶

Endoscopic procedures

Procedure-related MPL claims represent approximately 25% of all GI-related claims (8,17). Among these, 52% involve colonoscopy, 16% involve endoscopic retrograde cholangiopancreatography (ERCP), and 11% involve esophagogastroduodenoscopy.⁸ Albeit generally safe, colonoscopy, as with esophagogastroduodenoscopy, is subject to rare but serious AEs.^18,19 Risk of these AEs may be accentuated in certain scenarios (such as severe colonic inflammation or coagulopathy) and, as discussed earlier, may merit tailored informed consent. Regardless of the procedure, in the event of postprocedural development of signs/symptoms (such as tachycardia, fever, chest or abdominal discomfort, or hypotension) indicating a potential AE, stabilizing measures and evaluation (such as blood work and imaging) should be undertaken, and hospital admission (if not already hospitalized) should be considered until discharge is deemed safe.¹⁹

ERCP-related MPL claims, for many years, have had the highest average compensation of any GI procedure.¹¹ Though discussion of advanced procedures is beyond the scope of this article, it is worth mentioning the observation that most of such claims involve an allegation that the procedure was not indicated (for example, that it was performed based on inadequate evidence of pancreatobiliary pathology), or was for diagnostic purposes (for example, being done instead of noninvasive imaging) rather than therapeutic.^20-23 This emphasizes the importance of appropriate procedure indications.

Percutaneous endoscopic gastrostomy (PEG) placement merits special mention given it can be complicated by ethical challenges (for example, needing a surrogate decision-maker’s consent or representing medical futility) and has a relatively high potential for MPL claims. PEG placement carries a low AE rate (0.1%-1%), but these AEs may result in high morbidity/mortality, in part because of the underlying comorbidities of patients needing PEG placement.^24,25 Also, timing of a patient’s demise may coincide with PEG placement, thereby prompting (possibly unfounded) perceptions of causality.^24-27 Therefore, such scenarios merit unique additional preprocedure safeguards. For instance, for patients lacking capacity to provide informed consent, especially when family members may differ on whether PEG should be placed, it is advisable to ask the family to select one surrogate decision-maker (if there’s no advance directive) to whom the gastroenterologist should discuss both the risks, benefits, and goals of PEG placement in the context of the patient’s overall clinical trajectory/life expectancy and the need for consent (or refusal) based on what the patient would have wished. In addition, having a medical professional witness this discussion may be useful.²⁷
 

Antithrombotic agents

Periprocedural management of antithrombotics, including anticoagulants and antiplatelets, can pose challenges for the gastroenterologist. While clinical practice guidelines exist to guide decision-making in this regard, the variables involved may extend beyond the expertise of the gastroenterologist.²⁸ For instance, in addition to the procedural risk for bleeding, the indication for antithrombotic therapy, risk of a thrombotic event, duration of action of the antithrombotic, and available bridging options should all be considered according to recommendations.^28,29 While requiring more time on the part of the gastroenterologist, the optimal periprocedural management of antithrombotic agents would usually involve discussion with the provider managing antithrombotic therapy to best conduct a risk-benefit assessment regarding if (and how long) the antithrombotic therapy should be held (Figure). This shared decision-making, which should also include the patient, may help decrease MPL risk and improve outcomes.

Provider defense mechanisms

Physicians may engage in various defensive behaviors in an attempt to mitigate MPL risk; however, these behaviors may, paradoxically, increase risk.^30,31

Assurance behaviors

Assurance behaviors refer to the practice of recommending or performing additional services (such as medications, imaging, procedures, and referrals) that are not clearly indicated.^2,30,31 Assurance behaviors are driven by fear of MPL risk and/or missing a potential diagnosis. Recent studies have estimated that more than 50% of gastroenterologists worldwide have performed additional invasive procedures without clear indications, and that nearly one-third of endoscopic procedures annually have questionable indications.^30,32 While assurance behaviors may seem likely to decrease MPL risk, overall, they may inadvertently increase AE and MPL risk, as well as health care expenditures.^3,30,32

Avoidance behaviors

Avoidance behaviors refer to providers avoiding participation in potentially high-risk clinical interventions (for example, the actual procedures), including those for which they are credentialed/certified proficient.^30,31 Two clinical scenarios that illustrate this behavior include the following: An advanced endoscopist credentialed to perform ERCP might refer a “high-risk” elderly patient with cholangitis to another provider to perform said ERCP or for percutaneous transhepatic drainage (in the absence of a clear benefit to such), or a gastroenterologist might refer a patient to interventional gastroenterology for resection of a large polyp even though gastroenterologists are usually proficient in this skill and may feel comfortable performing the resection themselves. Avoidance behaviors are driven by a fear of MPL risk and can have several negative consequences.³³ For example, patients may not receive indicated interventions. Additionally, patients may have to wait longer for an intervention because they are referred to another provider, which also increases potential for loss to follow-up.^2,30,31 This may be viewed as noncompliance with the standard of care, among other hazards, thereby increasing MPL risk.

Documentation tenets

Thorough documentation can decrease MPL risk, especially since it is often used as legal evidence.¹⁶ Documenting, for instance, preprocedure discussion of potential risk of AEs (such as bleeding or perforation) or procedural failure (for example, missed lesions)can protect gastroenterologists (Figure).¹⁶ While, as discussed previously, these should be covered in the informed consent process (which itself reduces MPL risk), proof of compliance in providing adequate informed consent must come in the form of documentation that indicates that the process took place and specifically what topics were discussed therein. MPL risk may be further decreased by documenting steps taken during a procedure and anatomic landmarks encountered to offer proof of technical competency and compliance with standards of care (Figure).^16,34 In this context, it is worth recalling the adage: “If it’s not documented, it did not occur.”

Curbside consults versus consultation

Also germane here is the topic of whether documentation is needed for “curbside consults.” The uncertainty is, in part, semantic; that is, at what point does a “curbside” become a consultation? A curbside is a general question or query (such as anything that could also be answered by searching the Internet or reference materials) in response to which information is provided; once it involves provision of medical advice for a specific patient (for example, when patient identifiers have been shared or their EHR has been accessed), it constitutes a consultation. Based on these definitions, a curbside need not be documented, whereas a consultation – even if seemingly trivial – should be.

Consideration of language and cultural factors

Language barriers should be considered when the gastroenterologist is communicating with the patient, and such efforts, whenever made, should be documented to best protect against MPL.^16,35 These considerations arise not only during the consent process but when obtaining a history, providing postprocedure instructions, and during follow-ups. To this end, 24/7 telephone interpreter services may assist the gastroenterologist (when one is communicating with non–English speakers and is not medically certified in the patient’s native/preferred language) and strengthen trust in the provider-patient relationship.³⁶ Additionally, written materials (such as consent forms, procedural information) in patients’ native/preferred languages should be provided, when available, to enhance patient understanding and participation in care (Figure).³⁵

Challenges posed by telemedicine

The COVID-19 pandemic has rapidly led to more virtual encounters. While increased utilization of telemedicine platforms may make health care more accessible, it does not lessen the clinicians’ duty to patients and may actually expose them to greater MPL risk.^18,37,38 Therefore, the provider must be cognizant of two key principles to mitigate MPL risk in the context of telemedicine encounters. First, the same standard of care applies to virtual and in-person encounters.^18,37,38 Second, patient privacy and HIPAA regulations are not waived during telemedicine encounters, and breaches of such may result in an MPL claim.^18,37,38

With regard to the first principle, for patients who have not been physically examined (such as when a telemedicine visit was substituted for an in-person clinic encounter), gastroenterologists should not overlook requesting timely preprocedure anesthesia consultation or obtaining additional laboratory studies as needed to ensure safety and the same standard of care. Moreover, particularly in the context of pandemic-related decreased procedural capacity, triaging procedures can be especially challenging. Standardized institutional criteria which prioritize certain diagnoses/conditions over others, leaving room for justifiable exceptions, are advisable.
 

Vicarious liability

“Vicarious liability” is defined as that extending to persons who have not committed a wrong but on whose behalf wrongdoers acted.³⁹ Therefore, gastroenterologists may be liable not only for their own actions but also for those of personnel they supervise (such as fellow trainees and non–physician practitioners).³⁹ Vicarious liability aims to ensure that systemic checks and balances are in place so that, if failure occurs, harm can still be mitigated and/or avoided, as illustrated by Reason’s “Swiss Cheese Model.”⁴⁰

Conclusion

Any gastroenterologist can experience an MPL claim. Such an experience can be especially stressful and confusing to early-career clinicians, especially if they’re unfamiliar with legal proceedings. Although MPL principles are not often taught in medical school or residency, it is important for gastroenterologists to be informed regarding tenets of MPL and cognizant of clinical situations which have relatively higher MPL risk. This can assuage untoward angst regarding MPL and highlight proactive risk-mitigation strategies. In general, gastroenterologist practices that can mitigate MPL risk include effective communication; adequate informed consent/refusal; documentation of preprocedure counseling, periprocedure events, and postprocedure recommendations; and maintenance of proper certification and privileging.

Dr. Azizian and Dr. Dalai are with the University of California, Los Angeles and the department of medicine at Olive View–UCLA Medical Center, Sylmar, Calif. They are co–first authors of this paper. Dr. Dalai is also with the division of gastroenterology at the University of New Mexico, Albuquerque. Dr. Adams is with the Center for Clinical Management Research in Veterans Affairs Ann Arbor Healthcare System, the division of gastroenterology at the University of Michigan Health System, and the Institute for Healthcare Policy and Innovation, all in Ann Arbor, Mich. Dr. Tabibian is with UCLA and the division of gastroenterology at Olive View–UCLA Medical Center. The authors have no conflicts of interest.

References

1. 2020 Data Sharing Project Gastroenterology 2009-2018. Inside Medical Liability: Second Quarter. Accessed 2020 Dec 6.

2. Mello MM et al. Health Aff (Millwood). 2004 Jul-Aug;23(4):42-53.

3. Adams MA et al. JAMA. 2014 Oct;312(13):1348-9.

4. Pegalis SE. American Law of Medical Malpractice 3d, Vol. 2. St. Paul, Minn.: Thomson Reuters, 2005.

5. Feld LD et al. Am J Gastroenterol. 2018 Nov;113(11):1577-9.

6. Sawyer v. Wight, 196 F. Supp. 2d 220, 226 (E.D.N.Y. 2002).

7. Michael A. Sita v. Long Island Jewish-Hillside Medical Center, 22 A.D.3d 743 (N.Y. App. Div. 2005).

8. Conklin LS et al. Clin Gastroenterol Hepatol. 2008 Jun;6(6):677-81.

9. Jena AB et al. N Engl J Med. 2011 Aug 18;365(7):629-36.

10. Kane CK. “Policy Research Perspectives Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians.” Chicago: American Medical Association, 2010.

11. Hernandez LV et al. World J Gastrointest Endosc. 2013 Apr 16;5(4):169-73.

12. Schaffer AC et al. JAMA Intern Med. 2017 May 1;177(5):710-8.

13. Natanson v. Kline, 186 Kan. 393, 409, 350 P.2d 1093, 1106, decision clarified on denial of reh’g, 187 Kan. 186, 354 P.2d 670 (1960).

14. Truman v. Thomas, 27 Cal. 3d 285, 292, 611 P.2d 902, 906 (1980).

15. Shah P et al. Informed Consent, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Aug 22.

16. Rex DK. Clin Gastroenterol Hepatol. 2013 Jul;11(7):768-73.

17. Gerstenberger PD, Plumeri PA. Gastrointest Endosc. Mar-Apr 1993;39(2):132-8.

18. Adams MA and Allen JI. Clin Gastroenterol Hepatol. 2019 Nov;17(12):2392-6.e1.

19. Ahlawat R et al. Esophagogastroduodenoscopy, in “StatPearls.” Treasure Island, Fla.: StatPearls Publishing, 2020 Jan. Updated 2020 Dec 9.

20. Cotton PB. Gastrointest Endosc. 2006 Mar;63(3):378-82.

21. Cotton PB. Gastrointest Endosc. 2010 Oct;72(4):904.

22. Adamson TE et al. West J Med. 1989 Mar;150(3):356-60.

23. Trap R et al. Endoscopy. 1999 Feb;31(2):125-30.

24. Funaki B. Semin Intervent Radiol. 2015 Mar;32(1):61-4.

25. Feeding Tube Nursing Home and Hospital Malpractice. Miller & Zois, Attorneys at Law. Accessed 2020 Jun 20.

26. Medical Malpractice Lawsuit Brings $750,000 Settlement: Death of 82-year-old woman from sepsis due to improper placement of feeding tube. Lubin & Meyers PC. Accessed 2020 Jun 20.

27. Brendel RW et al. Med Clin North Am. 2010 Nov;94(6):1229-40, xi-ii.

28. ASGE Standards of Practice Committee; Acosta RD et al. Gastrointest Endosc. 2016 Jan;83(1):3-16.

29. Saleem S and Thomas AL. Cureus. 2018 Jun 25;10(6):e2878.

30. Hiyama T et al. World J Gastroenterol. 2006 Dec 21;12(47):7671-5.

31. Studdert DM et al. JAMA. 2005 Jun 1;293(21):2609-17.

32. Shaheen NJ et al. Gastroenterology. 2018 May;154(7):1993-2003.

33. Oza VM et al. Clin Gastroenterol Hepatol. 2016 Feb;14(2):172-4.

34. Feld AD. Gastrointest Endosc Clin N Am. 2002 Jan;12(1):171-9, viii-ix.

35. Lee JS et al. J Gen Intern Med. 2017 Aug;32(8):863-70.

36. Forrow L and Kontrimas JC. J Gen Intern Med. 2017 Aug;32(8):855-7.

37. Moses RE et al. Am J Gastroenterol. 2014 Aug;109(8):1128-32.

38. Tabibian JH. “The Evolution of Telehealth.” Guidepoint: Legal Solutions Blog. Accessed 2020 Aug 12.

39. Feld AD. Am J Gastroenterol. 2004 Sep;99(9):1641-4.

40. Reason J. BMJ. 2000;320(7237):768‐70.

Telehealth has been steadily gaining mainstream use throughout the last decade, but the practice was recently shoved, almost overnight, into the forefront of the health care profession. Telehealth is now used more frequently by medical groups and physicians than ever before. General reports before the COVID-19 pandemic approximated 90% of health care organizations used or planned to use telehealth in the future. This future may already be a reality, with a McKinsey & Company report estimating that physicians saw 50-175 times more patients over telehealth platforms since the pandemic’s start.¹

In general, telehealth includes use of electronic communication and information technologies to deliver long-distance or remote health care. A physician’s use of telemedicine (clinical services) is one of the most common uses, but the industry also includes other professionals, such as pharmacists and nurses.

• Increased access to health care.
• Increased access to medical specialists in small and rural communities.
• Improved long-term care from the comfort of patients’ homes.
• Improved platforms to document patient care outside regular business hours.

But along with these benefits, telehealth carries the disadvantage of potential increased liability. This increased liability could stem from:

• Breached standards of care.
• Inadequate or improper licensing.
• Limited care options.
• Decision making without a proper physical exam.
• Increased informed consent requirements.
• Restricted prescription access.

Before expanding any practice into telemedicine, awareness of potential legal issues is crucial.

Standard of care

Currently, telehealth laws and regulations vary significantly from state to state. But one rule is consistent across the board – that the standard of care for practicing medicine through telemedicine is identical to the standard of care required for practicing medicine during physical practice. It still requires the appropriate examination, testing, labs, imaging, and consultations that any in-person diagnosis needs. For physicians, it also includes supervising nonphysician clinicians, where state law requires supervision.

The American Telemedicine Association currently determines the primary governing standards and guidelines for telemedicine. These can help physicians understand best practices in meeting the standard of care through telemedicine. The American Gastroenterological Association provides coding guidelines and other resources to help physicians with telehealth and e-visits. Other professional societies, such as the American College of Radiology and the American Academy of Dermatology, offer guidelines specific to their medical specialties’ standards of care. These standards still vary from state to state, so medical professionals must be aware of any differences before treating patients in multiple states.
 

Licensing

Licensing is one of telemedicine’s most confusing legal issues. All states require a license to practice medicine (traditional or telehealth) within their borders. Without that license, practicing medicine in the state is a crime. On top of being criminal, unlicensed practice can affect insurance, liability, billing, and malpractice coverage. When in a brick-and-mortar clinic, a physician’s confidence in practicing within the licensed jurisdiction is easy. Now, the distinction is not so clear. Patients and physicians no longer have to be in the same room, city, or even state, meaning there could be unknown conflicting laws between the two locations. With rare exceptions, standards of care are based on the patient’s location, not the physician’s location. This increases the risk of practicing without being correctly licensed to higher than ever.

Because licensing is a significant roadblock in providing telemedicine, efforts are underway to make the process simpler and more streamlined. The Federation of State Medical Boards developed the Interstate Medical Licensure Compact (IMLC).² This can qualify physicians to practice medicine across state lines within the compact so long as they meet specific eligibility requirements. The IMLC creates a fast-track option for physicians to fill out one application and receive licenses from multiple states at once. Currently, the compact includes 32 states, the District of Columbia, and Guam.³

Informed consent

Telemedicine health care still requires informed consent from patients. In fact, in some states, the requirements for care provided through telehealth are actually stricter than requirements for informed consent obtained in person.

Most informed consent laws require physicians to cover the risks and benefits of a recommended course of treatment and all feasible and reasonable material alternatives. On top of this traditional informed consent, physicians must get additional consent to receive care over a telehealth platform. This unique requirement explains what telehealth is, possible risks and expected benefits, and security measures used to protect patient information. States vary regarding when verbal consent is sufficient, and when written consent is required.
 

Prescriptions

Telemedicine is still a relatively new industry, and few legal opinions specifically address telemedicine malpractice. However, prescribing medication based on telemedicine information is among the few issues the courts have addressed. A 2008 decision found that a physician review of patient questionnaires submitted over the Internet was insufficient to prescribe medication without a physical examination determining patient health.⁴ This cautious approach stemmed from telehealth’s early concern about the absence of patient-physician relationships and potential online pharmacy abuse. Since this decision, many states require an “in-person” visit with a patient before prescribing medication. The definition of what qualifies as an in-person visit varies from state to state – some still consider the use of real-time, audiovisual conferencing sufficient.

The law is still evolving for prescriptions. Some states don’t allow any prescriptions, while others allow physicians to prescribe their patients’ medications as part of an appropriate treatment plan according to their professional discretion. Almost every state prohibits the prescription of controlled substances based on telemedicine.
 

Conclusion

Telemedicine is becoming an increasingly significant part of both physician-patient relationships and the broader health care industry. Used appropriately, it can be an incredibly effective method of care for physicians and patients. Physicians should learn the laws governing telemedicine in every state they want to practice and continue to stay current on any changes. The Center for Connected Health Policy offers a report, updated semiannually, to help physicians stay up to date on their state laws. These efforts will help prevent physicians from exposure to liability and medical malpractice claims.

Mr. Hyde is a partner at Younker Hyde Macfarlane, a law firm that focuses on prosecuting medical malpractice claims on behalf of injured patients. Ms. Johnson is an associate attorney with the firm. You can find them at YHMLaw.com.

References

1. Bestsennyy O, Harris A, Rost J. Telehealth: A quarter-trillion-dollar post-COVID-19 reality? Mckinsey & Company, May 29, 2020.

2. FSMB: Draft Interstate Compact for Physician Licensure Nears Completion, 2014.

3. Interstate Medical Licensure Compact: U.S. State Participation in the Compact.

4. See, Low Cost Pharm., Inc. v. Ariz. State Bd. Of Pharm, 2008 Ariz. App. Unpub. LEXIS 790, referencing conclusion of Arizona Medical Board.

Telehealth has been steadily gaining mainstream use throughout the last decade, but the practice was recently shoved, almost overnight, into the forefront of the health care profession. Telehealth is now used more frequently by medical groups and physicians than ever before. General reports before the COVID-19 pandemic approximated 90% of health care organizations used or planned to use telehealth in the future. This future may already be a reality, with a McKinsey & Company report estimating that physicians saw 50-175 times more patients over telehealth platforms since the pandemic’s start.¹

In general, telehealth includes use of electronic communication and information technologies to deliver long-distance or remote health care. A physician’s use of telemedicine (clinical services) is one of the most common uses, but the industry also includes other professionals, such as pharmacists and nurses.

• Increased access to health care.
• Increased access to medical specialists in small and rural communities.
• Improved long-term care from the comfort of patients’ homes.
• Improved platforms to document patient care outside regular business hours.

But along with these benefits, telehealth carries the disadvantage of potential increased liability. This increased liability could stem from:

• Breached standards of care.
• Inadequate or improper licensing.
• Limited care options.
• Decision making without a proper physical exam.
• Increased informed consent requirements.
• Restricted prescription access.

Before expanding any practice into telemedicine, awareness of potential legal issues is crucial.

Standard of care

Currently, telehealth laws and regulations vary significantly from state to state. But one rule is consistent across the board – that the standard of care for practicing medicine through telemedicine is identical to the standard of care required for practicing medicine during physical practice. It still requires the appropriate examination, testing, labs, imaging, and consultations that any in-person diagnosis needs. For physicians, it also includes supervising nonphysician clinicians, where state law requires supervision.

The American Telemedicine Association currently determines the primary governing standards and guidelines for telemedicine. These can help physicians understand best practices in meeting the standard of care through telemedicine. The American Gastroenterological Association provides coding guidelines and other resources to help physicians with telehealth and e-visits. Other professional societies, such as the American College of Radiology and the American Academy of Dermatology, offer guidelines specific to their medical specialties’ standards of care. These standards still vary from state to state, so medical professionals must be aware of any differences before treating patients in multiple states.
 

Licensing

Licensing is one of telemedicine’s most confusing legal issues. All states require a license to practice medicine (traditional or telehealth) within their borders. Without that license, practicing medicine in the state is a crime. On top of being criminal, unlicensed practice can affect insurance, liability, billing, and malpractice coverage. When in a brick-and-mortar clinic, a physician’s confidence in practicing within the licensed jurisdiction is easy. Now, the distinction is not so clear. Patients and physicians no longer have to be in the same room, city, or even state, meaning there could be unknown conflicting laws between the two locations. With rare exceptions, standards of care are based on the patient’s location, not the physician’s location. This increases the risk of practicing without being correctly licensed to higher than ever.

Because licensing is a significant roadblock in providing telemedicine, efforts are underway to make the process simpler and more streamlined. The Federation of State Medical Boards developed the Interstate Medical Licensure Compact (IMLC).² This can qualify physicians to practice medicine across state lines within the compact so long as they meet specific eligibility requirements. The IMLC creates a fast-track option for physicians to fill out one application and receive licenses from multiple states at once. Currently, the compact includes 32 states, the District of Columbia, and Guam.³

Informed consent

Telemedicine health care still requires informed consent from patients. In fact, in some states, the requirements for care provided through telehealth are actually stricter than requirements for informed consent obtained in person.

Most informed consent laws require physicians to cover the risks and benefits of a recommended course of treatment and all feasible and reasonable material alternatives. On top of this traditional informed consent, physicians must get additional consent to receive care over a telehealth platform. This unique requirement explains what telehealth is, possible risks and expected benefits, and security measures used to protect patient information. States vary regarding when verbal consent is sufficient, and when written consent is required.
 

Prescriptions

Telemedicine is still a relatively new industry, and few legal opinions specifically address telemedicine malpractice. However, prescribing medication based on telemedicine information is among the few issues the courts have addressed. A 2008 decision found that a physician review of patient questionnaires submitted over the Internet was insufficient to prescribe medication without a physical examination determining patient health.⁴ This cautious approach stemmed from telehealth’s early concern about the absence of patient-physician relationships and potential online pharmacy abuse. Since this decision, many states require an “in-person” visit with a patient before prescribing medication. The definition of what qualifies as an in-person visit varies from state to state – some still consider the use of real-time, audiovisual conferencing sufficient.

The law is still evolving for prescriptions. Some states don’t allow any prescriptions, while others allow physicians to prescribe their patients’ medications as part of an appropriate treatment plan according to their professional discretion. Almost every state prohibits the prescription of controlled substances based on telemedicine.
 

Conclusion

Telemedicine is becoming an increasingly significant part of both physician-patient relationships and the broader health care industry. Used appropriately, it can be an incredibly effective method of care for physicians and patients. Physicians should learn the laws governing telemedicine in every state they want to practice and continue to stay current on any changes. The Center for Connected Health Policy offers a report, updated semiannually, to help physicians stay up to date on their state laws. These efforts will help prevent physicians from exposure to liability and medical malpractice claims.

Mr. Hyde is a partner at Younker Hyde Macfarlane, a law firm that focuses on prosecuting medical malpractice claims on behalf of injured patients. Ms. Johnson is an associate attorney with the firm. You can find them at YHMLaw.com.

References

1. Bestsennyy O, Harris A, Rost J. Telehealth: A quarter-trillion-dollar post-COVID-19 reality? Mckinsey & Company, May 29, 2020.

2. FSMB: Draft Interstate Compact for Physician Licensure Nears Completion, 2014.

3. Interstate Medical Licensure Compact: U.S. State Participation in the Compact.

4. See, Low Cost Pharm., Inc. v. Ariz. State Bd. Of Pharm, 2008 Ariz. App. Unpub. LEXIS 790, referencing conclusion of Arizona Medical Board.

Telehealth has been steadily gaining mainstream use throughout the last decade, but the practice was recently shoved, almost overnight, into the forefront of the health care profession. Telehealth is now used more frequently by medical groups and physicians than ever before. General reports before the COVID-19 pandemic approximated 90% of health care organizations used or planned to use telehealth in the future. This future may already be a reality, with a McKinsey & Company report estimating that physicians saw 50-175 times more patients over telehealth platforms since the pandemic’s start.¹

In general, telehealth includes use of electronic communication and information technologies to deliver long-distance or remote health care. A physician’s use of telemedicine (clinical services) is one of the most common uses, but the industry also includes other professionals, such as pharmacists and nurses.

• Increased access to health care.
• Increased access to medical specialists in small and rural communities.
• Improved long-term care from the comfort of patients’ homes.
• Improved platforms to document patient care outside regular business hours.

But along with these benefits, telehealth carries the disadvantage of potential increased liability. This increased liability could stem from:

• Breached standards of care.
• Inadequate or improper licensing.
• Limited care options.
• Decision making without a proper physical exam.
• Increased informed consent requirements.
• Restricted prescription access.

Before expanding any practice into telemedicine, awareness of potential legal issues is crucial.

Standard of care

Currently, telehealth laws and regulations vary significantly from state to state. But one rule is consistent across the board – that the standard of care for practicing medicine through telemedicine is identical to the standard of care required for practicing medicine during physical practice. It still requires the appropriate examination, testing, labs, imaging, and consultations that any in-person diagnosis needs. For physicians, it also includes supervising nonphysician clinicians, where state law requires supervision.

The American Telemedicine Association currently determines the primary governing standards and guidelines for telemedicine. These can help physicians understand best practices in meeting the standard of care through telemedicine. The American Gastroenterological Association provides coding guidelines and other resources to help physicians with telehealth and e-visits. Other professional societies, such as the American College of Radiology and the American Academy of Dermatology, offer guidelines specific to their medical specialties’ standards of care. These standards still vary from state to state, so medical professionals must be aware of any differences before treating patients in multiple states.
 

Licensing

Licensing is one of telemedicine’s most confusing legal issues. All states require a license to practice medicine (traditional or telehealth) within their borders. Without that license, practicing medicine in the state is a crime. On top of being criminal, unlicensed practice can affect insurance, liability, billing, and malpractice coverage. When in a brick-and-mortar clinic, a physician’s confidence in practicing within the licensed jurisdiction is easy. Now, the distinction is not so clear. Patients and physicians no longer have to be in the same room, city, or even state, meaning there could be unknown conflicting laws between the two locations. With rare exceptions, standards of care are based on the patient’s location, not the physician’s location. This increases the risk of practicing without being correctly licensed to higher than ever.

Because licensing is a significant roadblock in providing telemedicine, efforts are underway to make the process simpler and more streamlined. The Federation of State Medical Boards developed the Interstate Medical Licensure Compact (IMLC).² This can qualify physicians to practice medicine across state lines within the compact so long as they meet specific eligibility requirements. The IMLC creates a fast-track option for physicians to fill out one application and receive licenses from multiple states at once. Currently, the compact includes 32 states, the District of Columbia, and Guam.³

Informed consent

Telemedicine health care still requires informed consent from patients. In fact, in some states, the requirements for care provided through telehealth are actually stricter than requirements for informed consent obtained in person.

Most informed consent laws require physicians to cover the risks and benefits of a recommended course of treatment and all feasible and reasonable material alternatives. On top of this traditional informed consent, physicians must get additional consent to receive care over a telehealth platform. This unique requirement explains what telehealth is, possible risks and expected benefits, and security measures used to protect patient information. States vary regarding when verbal consent is sufficient, and when written consent is required.
 

Prescriptions

Telemedicine is still a relatively new industry, and few legal opinions specifically address telemedicine malpractice. However, prescribing medication based on telemedicine information is among the few issues the courts have addressed. A 2008 decision found that a physician review of patient questionnaires submitted over the Internet was insufficient to prescribe medication without a physical examination determining patient health.⁴ This cautious approach stemmed from telehealth’s early concern about the absence of patient-physician relationships and potential online pharmacy abuse. Since this decision, many states require an “in-person” visit with a patient before prescribing medication. The definition of what qualifies as an in-person visit varies from state to state – some still consider the use of real-time, audiovisual conferencing sufficient.

The law is still evolving for prescriptions. Some states don’t allow any prescriptions, while others allow physicians to prescribe their patients’ medications as part of an appropriate treatment plan according to their professional discretion. Almost every state prohibits the prescription of controlled substances based on telemedicine.
 

Conclusion

Telemedicine is becoming an increasingly significant part of both physician-patient relationships and the broader health care industry. Used appropriately, it can be an incredibly effective method of care for physicians and patients. Physicians should learn the laws governing telemedicine in every state they want to practice and continue to stay current on any changes. The Center for Connected Health Policy offers a report, updated semiannually, to help physicians stay up to date on their state laws. These efforts will help prevent physicians from exposure to liability and medical malpractice claims.

Mr. Hyde is a partner at Younker Hyde Macfarlane, a law firm that focuses on prosecuting medical malpractice claims on behalf of injured patients. Ms. Johnson is an associate attorney with the firm. You can find them at YHMLaw.com.

References

1. Bestsennyy O, Harris A, Rost J. Telehealth: A quarter-trillion-dollar post-COVID-19 reality? Mckinsey & Company, May 29, 2020.

2. FSMB: Draft Interstate Compact for Physician Licensure Nears Completion, 2014.

3. Interstate Medical Licensure Compact: U.S. State Participation in the Compact.

4. See, Low Cost Pharm., Inc. v. Ariz. State Bd. Of Pharm, 2008 Ariz. App. Unpub. LEXIS 790, referencing conclusion of Arizona Medical Board.

As COVID-19 continues to threaten the United States and the world, individuals in every profession have been challenged to examine their financial situation. At Fidelity Investments, we recently conducted a national survey asking people how current events have affected their opinions and behaviors when it comes to their money. The results showed that six in 10 Americans are concerned about household finances over the next 6 months. Unfortunately, we’ve seen that even health care professionals have not been financially spared, with salaries or benefits cut or, worse, furloughs and layoffs as hospital systems struggle. I work with many physicians, including gastroenterologists, in my role as a wealth planner for Fidelity Investments and have received quite a few questions related to shoring up family finances during these difficult times.

Luckily, the financial best practices that I share in “good” times ring true even in today’s world, with a few additions given the health and economic risks created by COVID-19.

1. Review your budget. It’s one thing to know that your budget is generally balanced (the dollars you spend are less than the dollars you earn). But it’s worth taking a closer look to see just where those dollars are going. In times of uncertainty, cutting back on expenses that aren’t necessary or don’t provide meaningful value to your life can be worthwhile. If you or your family have lost income because of the pandemic, you might consider these seven simple tips to help boost your cash flow.

2. Tackle (or find relief from) student loan debt. Doctors today graduate medical school with a median debt of just under $195,000.¹ Repaying these loans is daunting, particularly during the COVID-19 crisis. The recent passing of the CARES Act recognizes these difficult times: in fact, it automatically suspended required minimum loan payments and interest accrual on federal student loans until Sept. 30, 2020. This only applies to federal student loans, not private student loans. Beyond this period, if you are still struggling with payments, you may explore the possibility of refinancing, by taking out a lower-interest private loan and using that to pay off student loans (although this may extend the life of your loan). Borrowers could also consider other programs, such as REPAYE (Revised Pay As You Earn) through which your monthly payment tops out at 10% of your monthly income, or Public Service Loan Forgiveness (PSLF) if you work for a not-for-profit hospital or other qualifying employer. This program forgives the remaining balance on your direct loans after you have made 120 qualifying monthly payments while working full-time for a qualifying employer.

Additionally, borrowers could look for opportunities to reduce accrued interest, either by refinancing to a lower rate or making payments every 2 weeks rather than once each month.

3. Evaluate your emergency fund. It’s a good idea to keep 3-6 months’ of essential expenses in cash or cash-like investments. If you don’t yet have this 3- to 6-month cushion saved, now is a good time to work to reduce your expenses and stash away any extra cash.

4. Save early and often for retirement. You can borrow money to support many of life’s needs, from housing, to cars, to college. But you can’t borrow for retirement. That is why I encourage clients to put retirement savings at the top of the list, after accounting for day-to-day needs of their families. People often ask me whether it makes sense to continue saving for retirement, often a far-off goal for younger doctors, especially in these uncertain times. My answer? Yes. If you are able to save, continue to save: the earlier you begin to make contributions to your retirement account, and the longer you continue to do so, the more your retirement account(s) have the potential to grow over time.

Another question I receive is whether to take distributions from a retirement account early if you find yourself in a precarious financial situation because of the COVID-19 crisis. The CARES Act provides options allowing Americans to take a withdrawal or loan from a participating retirement plan if you, your spouse, or your dependent have a COVID-19 related illness or you’re experiencing a loss of income related to the COVID-19 pandemic. Try to look at alternative sources of income before tapping your hard-earned retirement savings. If you can find a way to continue saving and avoid drawing down your retirement accounts, your future self will thank you.

Recent market volatility can bring nerves that make it difficult to stay invested. However, as long as your risk tolerance and time horizon reflect your asset allocation – the mix of stock, bonds, and cash (which a financial planner can help with) – you can take comfort in knowing that historically every severe downturn has eventually given way to further growth.

During uncertain times like these, I think the best guidance is to focus on what you can control. The considerations above are a great place to start building a financial plan to solidify you and your family’s future. A Fidelity survey found that 44% of Americans are now working to build up their emergency savings, and one-third (34%) are rethinking how they manage their money because of the COVID-19 crisis.³ Despite the stresses we all face, there is no time like the present to start or revisit your financial plan.
 

Footnotes

1. Barron D. Why Doctors Are Drowning in Medical School Debt. Scientific American. July 15, 2019.

2. With respect to federal taxation only. Contributions, investment earnings, and distributions may or may not be subject to state taxation. The triple tax advantages are only applicable if the money is used to pay for qualified medical expenses as described in IRS Publication 969.

3. Fidelity Market Sentiment Study presents the findings of a nationwide online survey consisting of 3,012 adults, at least 18 years of age, from which 1,591 respondents qualified as having at least one investment account. The study was fielded April 1-8, 2020, by ENGINE INSIGHTS, an independent research firm not affiliated with Fidelity Investments. The results of this survey may not be representative of all adults meeting the same criteria as those surveyed for this study. For the purposes of this study, the generations are defined as follows: Millennials (aged 24-39 years); Generation X (aged 40-55 years); Baby Boomers (aged 56-74 years).

Mr. Tudor is Vice President, Wealth Planning Consultant at Fidelity Investments.

As COVID-19 continues to threaten the United States and the world, individuals in every profession have been challenged to examine their financial situation. At Fidelity Investments, we recently conducted a national survey asking people how current events have affected their opinions and behaviors when it comes to their money. The results showed that six in 10 Americans are concerned about household finances over the next 6 months. Unfortunately, we’ve seen that even health care professionals have not been financially spared, with salaries or benefits cut or, worse, furloughs and layoffs as hospital systems struggle. I work with many physicians, including gastroenterologists, in my role as a wealth planner for Fidelity Investments and have received quite a few questions related to shoring up family finances during these difficult times.

Luckily, the financial best practices that I share in “good” times ring true even in today’s world, with a few additions given the health and economic risks created by COVID-19.

1. Review your budget. It’s one thing to know that your budget is generally balanced (the dollars you spend are less than the dollars you earn). But it’s worth taking a closer look to see just where those dollars are going. In times of uncertainty, cutting back on expenses that aren’t necessary or don’t provide meaningful value to your life can be worthwhile. If you or your family have lost income because of the pandemic, you might consider these seven simple tips to help boost your cash flow.

2. Tackle (or find relief from) student loan debt. Doctors today graduate medical school with a median debt of just under $195,000.¹ Repaying these loans is daunting, particularly during the COVID-19 crisis. The recent passing of the CARES Act recognizes these difficult times: in fact, it automatically suspended required minimum loan payments and interest accrual on federal student loans until Sept. 30, 2020. This only applies to federal student loans, not private student loans. Beyond this period, if you are still struggling with payments, you may explore the possibility of refinancing, by taking out a lower-interest private loan and using that to pay off student loans (although this may extend the life of your loan). Borrowers could also consider other programs, such as REPAYE (Revised Pay As You Earn) through which your monthly payment tops out at 10% of your monthly income, or Public Service Loan Forgiveness (PSLF) if you work for a not-for-profit hospital or other qualifying employer. This program forgives the remaining balance on your direct loans after you have made 120 qualifying monthly payments while working full-time for a qualifying employer.

Additionally, borrowers could look for opportunities to reduce accrued interest, either by refinancing to a lower rate or making payments every 2 weeks rather than once each month.

3. Evaluate your emergency fund. It’s a good idea to keep 3-6 months’ of essential expenses in cash or cash-like investments. If you don’t yet have this 3- to 6-month cushion saved, now is a good time to work to reduce your expenses and stash away any extra cash.

4. Save early and often for retirement. You can borrow money to support many of life’s needs, from housing, to cars, to college. But you can’t borrow for retirement. That is why I encourage clients to put retirement savings at the top of the list, after accounting for day-to-day needs of their families. People often ask me whether it makes sense to continue saving for retirement, often a far-off goal for younger doctors, especially in these uncertain times. My answer? Yes. If you are able to save, continue to save: the earlier you begin to make contributions to your retirement account, and the longer you continue to do so, the more your retirement account(s) have the potential to grow over time.

Another question I receive is whether to take distributions from a retirement account early if you find yourself in a precarious financial situation because of the COVID-19 crisis. The CARES Act provides options allowing Americans to take a withdrawal or loan from a participating retirement plan if you, your spouse, or your dependent have a COVID-19 related illness or you’re experiencing a loss of income related to the COVID-19 pandemic. Try to look at alternative sources of income before tapping your hard-earned retirement savings. If you can find a way to continue saving and avoid drawing down your retirement accounts, your future self will thank you.

Recent market volatility can bring nerves that make it difficult to stay invested. However, as long as your risk tolerance and time horizon reflect your asset allocation – the mix of stock, bonds, and cash (which a financial planner can help with) – you can take comfort in knowing that historically every severe downturn has eventually given way to further growth.

During uncertain times like these, I think the best guidance is to focus on what you can control. The considerations above are a great place to start building a financial plan to solidify you and your family’s future. A Fidelity survey found that 44% of Americans are now working to build up their emergency savings, and one-third (34%) are rethinking how they manage their money because of the COVID-19 crisis.³ Despite the stresses we all face, there is no time like the present to start or revisit your financial plan.
 

Footnotes

1. Barron D. Why Doctors Are Drowning in Medical School Debt. Scientific American. July 15, 2019.

2. With respect to federal taxation only. Contributions, investment earnings, and distributions may or may not be subject to state taxation. The triple tax advantages are only applicable if the money is used to pay for qualified medical expenses as described in IRS Publication 969.

3. Fidelity Market Sentiment Study presents the findings of a nationwide online survey consisting of 3,012 adults, at least 18 years of age, from which 1,591 respondents qualified as having at least one investment account. The study was fielded April 1-8, 2020, by ENGINE INSIGHTS, an independent research firm not affiliated with Fidelity Investments. The results of this survey may not be representative of all adults meeting the same criteria as those surveyed for this study. For the purposes of this study, the generations are defined as follows: Millennials (aged 24-39 years); Generation X (aged 40-55 years); Baby Boomers (aged 56-74 years).

Mr. Tudor is Vice President, Wealth Planning Consultant at Fidelity Investments.

As COVID-19 continues to threaten the United States and the world, individuals in every profession have been challenged to examine their financial situation. At Fidelity Investments, we recently conducted a national survey asking people how current events have affected their opinions and behaviors when it comes to their money. The results showed that six in 10 Americans are concerned about household finances over the next 6 months. Unfortunately, we’ve seen that even health care professionals have not been financially spared, with salaries or benefits cut or, worse, furloughs and layoffs as hospital systems struggle. I work with many physicians, including gastroenterologists, in my role as a wealth planner for Fidelity Investments and have received quite a few questions related to shoring up family finances during these difficult times.

Luckily, the financial best practices that I share in “good” times ring true even in today’s world, with a few additions given the health and economic risks created by COVID-19.

1. Review your budget. It’s one thing to know that your budget is generally balanced (the dollars you spend are less than the dollars you earn). But it’s worth taking a closer look to see just where those dollars are going. In times of uncertainty, cutting back on expenses that aren’t necessary or don’t provide meaningful value to your life can be worthwhile. If you or your family have lost income because of the pandemic, you might consider these seven simple tips to help boost your cash flow.

2. Tackle (or find relief from) student loan debt. Doctors today graduate medical school with a median debt of just under $195,000.¹ Repaying these loans is daunting, particularly during the COVID-19 crisis. The recent passing of the CARES Act recognizes these difficult times: in fact, it automatically suspended required minimum loan payments and interest accrual on federal student loans until Sept. 30, 2020. This only applies to federal student loans, not private student loans. Beyond this period, if you are still struggling with payments, you may explore the possibility of refinancing, by taking out a lower-interest private loan and using that to pay off student loans (although this may extend the life of your loan). Borrowers could also consider other programs, such as REPAYE (Revised Pay As You Earn) through which your monthly payment tops out at 10% of your monthly income, or Public Service Loan Forgiveness (PSLF) if you work for a not-for-profit hospital or other qualifying employer. This program forgives the remaining balance on your direct loans after you have made 120 qualifying monthly payments while working full-time for a qualifying employer.

Additionally, borrowers could look for opportunities to reduce accrued interest, either by refinancing to a lower rate or making payments every 2 weeks rather than once each month.

3. Evaluate your emergency fund. It’s a good idea to keep 3-6 months’ of essential expenses in cash or cash-like investments. If you don’t yet have this 3- to 6-month cushion saved, now is a good time to work to reduce your expenses and stash away any extra cash.

4. Save early and often for retirement. You can borrow money to support many of life’s needs, from housing, to cars, to college. But you can’t borrow for retirement. That is why I encourage clients to put retirement savings at the top of the list, after accounting for day-to-day needs of their families. People often ask me whether it makes sense to continue saving for retirement, often a far-off goal for younger doctors, especially in these uncertain times. My answer? Yes. If you are able to save, continue to save: the earlier you begin to make contributions to your retirement account, and the longer you continue to do so, the more your retirement account(s) have the potential to grow over time.

Another question I receive is whether to take distributions from a retirement account early if you find yourself in a precarious financial situation because of the COVID-19 crisis. The CARES Act provides options allowing Americans to take a withdrawal or loan from a participating retirement plan if you, your spouse, or your dependent have a COVID-19 related illness or you’re experiencing a loss of income related to the COVID-19 pandemic. Try to look at alternative sources of income before tapping your hard-earned retirement savings. If you can find a way to continue saving and avoid drawing down your retirement accounts, your future self will thank you.

Recent market volatility can bring nerves that make it difficult to stay invested. However, as long as your risk tolerance and time horizon reflect your asset allocation – the mix of stock, bonds, and cash (which a financial planner can help with) – you can take comfort in knowing that historically every severe downturn has eventually given way to further growth.

During uncertain times like these, I think the best guidance is to focus on what you can control. The considerations above are a great place to start building a financial plan to solidify you and your family’s future. A Fidelity survey found that 44% of Americans are now working to build up their emergency savings, and one-third (34%) are rethinking how they manage their money because of the COVID-19 crisis.³ Despite the stresses we all face, there is no time like the present to start or revisit your financial plan.
 

Footnotes

1. Barron D. Why Doctors Are Drowning in Medical School Debt. Scientific American. July 15, 2019.

2. With respect to federal taxation only. Contributions, investment earnings, and distributions may or may not be subject to state taxation. The triple tax advantages are only applicable if the money is used to pay for qualified medical expenses as described in IRS Publication 969.

3. Fidelity Market Sentiment Study presents the findings of a nationwide online survey consisting of 3,012 adults, at least 18 years of age, from which 1,591 respondents qualified as having at least one investment account. The study was fielded April 1-8, 2020, by ENGINE INSIGHTS, an independent research firm not affiliated with Fidelity Investments. The results of this survey may not be representative of all adults meeting the same criteria as those surveyed for this study. For the purposes of this study, the generations are defined as follows: Millennials (aged 24-39 years); Generation X (aged 40-55 years); Baby Boomers (aged 56-74 years).

Mr. Tudor is Vice President, Wealth Planning Consultant at Fidelity Investments.

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.

The young gastroenterologist has no shortage of personal finance topics to juggle, ranging from investments, to life and disability coverage, and planning for retirement. But the elephant in the room is student loan management. Average medical student debt today is approximately $240,000, and debt burdens greater than $300,000 are becoming common.^1,2 With this staggering amount of debt, it is understandable why student loans are a major source of anxiety. Here, I will provide a brief introduction to student loan management for gastroenterologists.

Student loans: Basic strategy

It is important to distinguish between two major types of loans: private student loans and direct federal loans. With private student loans the best strategy in most cases is to refinance to a lower interest rate. For direct federal loans, however, the decision making is more complex. There are two major approaches to these federal loans – either 1) refinance, or 2) go for public service loan forgiveness (PSLF). See Figure 1 for a flowchart summarizing my general approach to student loan management.

Refinance basics

One potential approach is to refinance your federal loans. Most federal loans today are at a relatively high interest rate of 6%-8%.³ Private refinancing can yield rates in the 3%-5% range, depending on the type of loan and other factors. For a loan balance of $200,000, the savings by refinancing could be approximately $2,000-$10,000 per year in interest alone. However, refinancing your loans with a private company eliminates the possibility of PSLF. Hence, you should only refinance federal loans once you are sure that you will not be pursuing PSLF. You may refinance your private loans anytime since they do not qualify for PSLF. There are multiple companies that provide student loan refinancing. The process can be done online, sometimes in as little as 30 minutes. There is generally little or no cost to refinancing, and many companies even provide a small cash-back incentive to refinance.

PSLF basics

The PSLF program allows borrowers to have the remainder of their direct loans forgiven after 10 years (120 monthly payments) under a qualifying income-driven repayment (IDR) plan.⁴ Figure 2 shows an overview of the various IDR plans. During the 120 payments, the borrower must work full time for a qualifying employer, which includes a government employer or a not-for-profit 501(c)(3) organization. Loan forgiveness with PSLF is completely tax free. Importantly, the PSLF program only applies to direct federal loans. You can see your federal loan types and balances by visiting https://studentaid.gov/.

To PSLF or not to PSLF?

With direct federal loans, the decision to refinance or go for PSLF is a major fork in the road. PSLF can be a good option for borrowers with long training programs and with high student loan burdens (e.g., loan-to-income ratios of 1:1, 2:1 or higher). By contrast, borrowers with short training programs or relatively small loan burdens may be better off refinancing to a low interest rate and paying off loans quickly. Virtually all institutions that train residents and fellows are qualified government or 501(c)(3) organizations. Hence, a gastroenterology graduate generally will have completed at least 6 out of 10 years of payments by the end of training. Trainees who did a chief resident year or gastroenterology research track may have completed 7 or 8 years of qualifying payments already.

For trainees who are already planning an academic career, PSLF is often a good option. While PSLF can be a nice benefit, I would not advise making a career decision purely based on PSLF. Private practice jobs generally come with substantially higher salaries than academic and government jobs. This salary differential typically more than compensates for the loss of access to PSLF. Hence, I advise trainees to choose the practice setting that is best for their personal and career satisfaction, and then build a student loan management plan around that. The exception may be the trainee who has a very large student loan burden (e.g., loan-to-income ratio of 2:1 or 3:1).

Caveats with PSLF

There have been well publicized concerns about the future of PSLF, including proposals to eliminate or cap the program.^5,6 However, most proposed legislation has only recommended changes to PSLF for new borrowers. If you currently have existing federal loans, you would very likely be grandfathered into the existing PSLF terms. All federal master promissory notes since 2007 have cited PSLF as a loan repayment option.⁷ Hence, eliminating PSLF for existing borrowers seems unlikely since it would be changing the terms of an executed contract.⁸

There have also been widespread reports of high numbers of borrowers being denied applications for PSLF.^9,10 However, the majority of these applicants did not have correct types of loans, had not worked full time for qualifying employers or had not made the full 120 payments.¹¹ Yet some denials have apparently resulted from errors in tracking qualifying payments by FedLoan servicing.¹² Therefore it would be prudent to keep your own careful records of all qualifying payments towards PSLF.

The nuclear option: 20- to 25-year IDR-based forgiveness

An additional option allows borrowers to make IDRs for 20-25 years (details in Figure 2) and then having their remaining loan balance forgiven.¹³ This option is completely independent of PSLF. Borrowers can work full time or part time and can work for any employer, including private employers.

One additional option: NIH loan repayment programs

One additional solution to consider are the NIH Loan Repayment Programs (LRPs). These programs can provide substantial loan repayment (up to $50,000 annually) for trainees and attendings engaged in research that aligns with NIH priorities, including clinical research or health disparities research.¹⁴ Notably, the applicant’s research does not have to be NIH sponsored research.

Getting more information

The approach above is a general overview of student loan concepts for gastroenterologists. However, there are countless nuances and tactics that are beyond the scope of this introductory article. I encourage everyone to get additional information and advice when making your own loan management plan. There are many helpful online resources, podcasts, and books discussing the topic. Several companies provide detailed consultation on managing student loans. Such services may cost a few hundred dollars but could potentially save tens of thousands of dollars on student loan costs.

Dr. Jain is assistant professor of medicine, division of gastroenterology & hepatology, department of medicine, University of North Carolina School of Medicine, Chapel Hill. Dr. Jain has no conflicts of interest and no funding source.

References

1. https://nces.ed.gov/programs/digest/d18/tables/dt18_332.45.asp

2. https://www.credible.com/blog/statistics/average-medical-school-debt/

3. https://studentaid.gov/understand-aid/types/loans/interest-rates

4. https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service

5. https://www.forbes.com/sites/robertfarrington/2019/09/24/how-to-get-your-public-service-loan-forgiveness-qualifying-payments-recounted/#18567f061f5d

6. https://www.cbo.gov/budget-options/2018/54721

7. https://static.studentloans.gov/images/ApplicationAndPromissoryNote.pdf

8. https://www.biglawinvestor.com/pslf-promissory-note/

9. https://bostonstudentloanlawyer.com/scary-stats-for-public-service-loan-forgiveness/

10. https://www.marketwatch.com/story/this-government-loan-forgiveness-program-has-rejected-99-of-borrowers-so-far-2018-09-20

11. https://studentaid.gov/data-center/student/loan-forgiveness/pslf-data

12. https://www.nytimes.com/2019/04/12/your-money/public-service-loan-forgiveness.html

13. https://studentaid.gov/manage-loans/repayment/plans/income-driven

14. https://www.lrp.nih.gov/eligibility-programs

The young gastroenterologist has no shortage of personal finance topics to juggle, ranging from investments, to life and disability coverage, and planning for retirement. But the elephant in the room is student loan management. Average medical student debt today is approximately $240,000, and debt burdens greater than $300,000 are becoming common.^1,2 With this staggering amount of debt, it is understandable why student loans are a major source of anxiety. Here, I will provide a brief introduction to student loan management for gastroenterologists.

Student loans: Basic strategy

It is important to distinguish between two major types of loans: private student loans and direct federal loans. With private student loans the best strategy in most cases is to refinance to a lower interest rate. For direct federal loans, however, the decision making is more complex. There are two major approaches to these federal loans – either 1) refinance, or 2) go for public service loan forgiveness (PSLF). See Figure 1 for a flowchart summarizing my general approach to student loan management.

Refinance basics

One potential approach is to refinance your federal loans. Most federal loans today are at a relatively high interest rate of 6%-8%.³ Private refinancing can yield rates in the 3%-5% range, depending on the type of loan and other factors. For a loan balance of $200,000, the savings by refinancing could be approximately $2,000-$10,000 per year in interest alone. However, refinancing your loans with a private company eliminates the possibility of PSLF. Hence, you should only refinance federal loans once you are sure that you will not be pursuing PSLF. You may refinance your private loans anytime since they do not qualify for PSLF. There are multiple companies that provide student loan refinancing. The process can be done online, sometimes in as little as 30 minutes. There is generally little or no cost to refinancing, and many companies even provide a small cash-back incentive to refinance.

PSLF basics

The PSLF program allows borrowers to have the remainder of their direct loans forgiven after 10 years (120 monthly payments) under a qualifying income-driven repayment (IDR) plan.⁴ Figure 2 shows an overview of the various IDR plans. During the 120 payments, the borrower must work full time for a qualifying employer, which includes a government employer or a not-for-profit 501(c)(3) organization. Loan forgiveness with PSLF is completely tax free. Importantly, the PSLF program only applies to direct federal loans. You can see your federal loan types and balances by visiting https://studentaid.gov/.

To PSLF or not to PSLF?

With direct federal loans, the decision to refinance or go for PSLF is a major fork in the road. PSLF can be a good option for borrowers with long training programs and with high student loan burdens (e.g., loan-to-income ratios of 1:1, 2:1 or higher). By contrast, borrowers with short training programs or relatively small loan burdens may be better off refinancing to a low interest rate and paying off loans quickly. Virtually all institutions that train residents and fellows are qualified government or 501(c)(3) organizations. Hence, a gastroenterology graduate generally will have completed at least 6 out of 10 years of payments by the end of training. Trainees who did a chief resident year or gastroenterology research track may have completed 7 or 8 years of qualifying payments already.

For trainees who are already planning an academic career, PSLF is often a good option. While PSLF can be a nice benefit, I would not advise making a career decision purely based on PSLF. Private practice jobs generally come with substantially higher salaries than academic and government jobs. This salary differential typically more than compensates for the loss of access to PSLF. Hence, I advise trainees to choose the practice setting that is best for their personal and career satisfaction, and then build a student loan management plan around that. The exception may be the trainee who has a very large student loan burden (e.g., loan-to-income ratio of 2:1 or 3:1).

Caveats with PSLF

There have been well publicized concerns about the future of PSLF, including proposals to eliminate or cap the program.^5,6 However, most proposed legislation has only recommended changes to PSLF for new borrowers. If you currently have existing federal loans, you would very likely be grandfathered into the existing PSLF terms. All federal master promissory notes since 2007 have cited PSLF as a loan repayment option.⁷ Hence, eliminating PSLF for existing borrowers seems unlikely since it would be changing the terms of an executed contract.⁸

There have also been widespread reports of high numbers of borrowers being denied applications for PSLF.^9,10 However, the majority of these applicants did not have correct types of loans, had not worked full time for qualifying employers or had not made the full 120 payments.¹¹ Yet some denials have apparently resulted from errors in tracking qualifying payments by FedLoan servicing.¹² Therefore it would be prudent to keep your own careful records of all qualifying payments towards PSLF.

The nuclear option: 20- to 25-year IDR-based forgiveness

An additional option allows borrowers to make IDRs for 20-25 years (details in Figure 2) and then having their remaining loan balance forgiven.¹³ This option is completely independent of PSLF. Borrowers can work full time or part time and can work for any employer, including private employers.

One additional option: NIH loan repayment programs

One additional solution to consider are the NIH Loan Repayment Programs (LRPs). These programs can provide substantial loan repayment (up to $50,000 annually) for trainees and attendings engaged in research that aligns with NIH priorities, including clinical research or health disparities research.¹⁴ Notably, the applicant’s research does not have to be NIH sponsored research.

Getting more information

The approach above is a general overview of student loan concepts for gastroenterologists. However, there are countless nuances and tactics that are beyond the scope of this introductory article. I encourage everyone to get additional information and advice when making your own loan management plan. There are many helpful online resources, podcasts, and books discussing the topic. Several companies provide detailed consultation on managing student loans. Such services may cost a few hundred dollars but could potentially save tens of thousands of dollars on student loan costs.

Dr. Jain is assistant professor of medicine, division of gastroenterology & hepatology, department of medicine, University of North Carolina School of Medicine, Chapel Hill. Dr. Jain has no conflicts of interest and no funding source.

References

1. https://nces.ed.gov/programs/digest/d18/tables/dt18_332.45.asp

2. https://www.credible.com/blog/statistics/average-medical-school-debt/

3. https://studentaid.gov/understand-aid/types/loans/interest-rates

4. https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service

5. https://www.forbes.com/sites/robertfarrington/2019/09/24/how-to-get-your-public-service-loan-forgiveness-qualifying-payments-recounted/#18567f061f5d

6. https://www.cbo.gov/budget-options/2018/54721

7. https://static.studentloans.gov/images/ApplicationAndPromissoryNote.pdf

8. https://www.biglawinvestor.com/pslf-promissory-note/

9. https://bostonstudentloanlawyer.com/scary-stats-for-public-service-loan-forgiveness/

10. https://www.marketwatch.com/story/this-government-loan-forgiveness-program-has-rejected-99-of-borrowers-so-far-2018-09-20

11. https://studentaid.gov/data-center/student/loan-forgiveness/pslf-data

12. https://www.nytimes.com/2019/04/12/your-money/public-service-loan-forgiveness.html

13. https://studentaid.gov/manage-loans/repayment/plans/income-driven

14. https://www.lrp.nih.gov/eligibility-programs

The young gastroenterologist has no shortage of personal finance topics to juggle, ranging from investments, to life and disability coverage, and planning for retirement. But the elephant in the room is student loan management. Average medical student debt today is approximately $240,000, and debt burdens greater than $300,000 are becoming common.^1,2 With this staggering amount of debt, it is understandable why student loans are a major source of anxiety. Here, I will provide a brief introduction to student loan management for gastroenterologists.

Student loans: Basic strategy

It is important to distinguish between two major types of loans: private student loans and direct federal loans. With private student loans the best strategy in most cases is to refinance to a lower interest rate. For direct federal loans, however, the decision making is more complex. There are two major approaches to these federal loans – either 1) refinance, or 2) go for public service loan forgiveness (PSLF). See Figure 1 for a flowchart summarizing my general approach to student loan management.

Refinance basics

One potential approach is to refinance your federal loans. Most federal loans today are at a relatively high interest rate of 6%-8%.³ Private refinancing can yield rates in the 3%-5% range, depending on the type of loan and other factors. For a loan balance of $200,000, the savings by refinancing could be approximately $2,000-$10,000 per year in interest alone. However, refinancing your loans with a private company eliminates the possibility of PSLF. Hence, you should only refinance federal loans once you are sure that you will not be pursuing PSLF. You may refinance your private loans anytime since they do not qualify for PSLF. There are multiple companies that provide student loan refinancing. The process can be done online, sometimes in as little as 30 minutes. There is generally little or no cost to refinancing, and many companies even provide a small cash-back incentive to refinance.

PSLF basics

The PSLF program allows borrowers to have the remainder of their direct loans forgiven after 10 years (120 monthly payments) under a qualifying income-driven repayment (IDR) plan.⁴ Figure 2 shows an overview of the various IDR plans. During the 120 payments, the borrower must work full time for a qualifying employer, which includes a government employer or a not-for-profit 501(c)(3) organization. Loan forgiveness with PSLF is completely tax free. Importantly, the PSLF program only applies to direct federal loans. You can see your federal loan types and balances by visiting https://studentaid.gov/.

To PSLF or not to PSLF?

With direct federal loans, the decision to refinance or go for PSLF is a major fork in the road. PSLF can be a good option for borrowers with long training programs and with high student loan burdens (e.g., loan-to-income ratios of 1:1, 2:1 or higher). By contrast, borrowers with short training programs or relatively small loan burdens may be better off refinancing to a low interest rate and paying off loans quickly. Virtually all institutions that train residents and fellows are qualified government or 501(c)(3) organizations. Hence, a gastroenterology graduate generally will have completed at least 6 out of 10 years of payments by the end of training. Trainees who did a chief resident year or gastroenterology research track may have completed 7 or 8 years of qualifying payments already.

For trainees who are already planning an academic career, PSLF is often a good option. While PSLF can be a nice benefit, I would not advise making a career decision purely based on PSLF. Private practice jobs generally come with substantially higher salaries than academic and government jobs. This salary differential typically more than compensates for the loss of access to PSLF. Hence, I advise trainees to choose the practice setting that is best for their personal and career satisfaction, and then build a student loan management plan around that. The exception may be the trainee who has a very large student loan burden (e.g., loan-to-income ratio of 2:1 or 3:1).

Caveats with PSLF

There have been well publicized concerns about the future of PSLF, including proposals to eliminate or cap the program.^5,6 However, most proposed legislation has only recommended changes to PSLF for new borrowers. If you currently have existing federal loans, you would very likely be grandfathered into the existing PSLF terms. All federal master promissory notes since 2007 have cited PSLF as a loan repayment option.⁷ Hence, eliminating PSLF for existing borrowers seems unlikely since it would be changing the terms of an executed contract.⁸

There have also been widespread reports of high numbers of borrowers being denied applications for PSLF.^9,10 However, the majority of these applicants did not have correct types of loans, had not worked full time for qualifying employers or had not made the full 120 payments.¹¹ Yet some denials have apparently resulted from errors in tracking qualifying payments by FedLoan servicing.¹² Therefore it would be prudent to keep your own careful records of all qualifying payments towards PSLF.

The nuclear option: 20- to 25-year IDR-based forgiveness

An additional option allows borrowers to make IDRs for 20-25 years (details in Figure 2) and then having their remaining loan balance forgiven.¹³ This option is completely independent of PSLF. Borrowers can work full time or part time and can work for any employer, including private employers.

One additional option: NIH loan repayment programs

One additional solution to consider are the NIH Loan Repayment Programs (LRPs). These programs can provide substantial loan repayment (up to $50,000 annually) for trainees and attendings engaged in research that aligns with NIH priorities, including clinical research or health disparities research.¹⁴ Notably, the applicant’s research does not have to be NIH sponsored research.

Getting more information

The approach above is a general overview of student loan concepts for gastroenterologists. However, there are countless nuances and tactics that are beyond the scope of this introductory article. I encourage everyone to get additional information and advice when making your own loan management plan. There are many helpful online resources, podcasts, and books discussing the topic. Several companies provide detailed consultation on managing student loans. Such services may cost a few hundred dollars but could potentially save tens of thousands of dollars on student loan costs.

Dr. Jain is assistant professor of medicine, division of gastroenterology & hepatology, department of medicine, University of North Carolina School of Medicine, Chapel Hill. Dr. Jain has no conflicts of interest and no funding source.

References

1. https://nces.ed.gov/programs/digest/d18/tables/dt18_332.45.asp

2. https://www.credible.com/blog/statistics/average-medical-school-debt/

3. https://studentaid.gov/understand-aid/types/loans/interest-rates

4. https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service

5. https://www.forbes.com/sites/robertfarrington/2019/09/24/how-to-get-your-public-service-loan-forgiveness-qualifying-payments-recounted/#18567f061f5d

6. https://www.cbo.gov/budget-options/2018/54721

7. https://static.studentloans.gov/images/ApplicationAndPromissoryNote.pdf

8. https://www.biglawinvestor.com/pslf-promissory-note/

9. https://bostonstudentloanlawyer.com/scary-stats-for-public-service-loan-forgiveness/

10. https://www.marketwatch.com/story/this-government-loan-forgiveness-program-has-rejected-99-of-borrowers-so-far-2018-09-20

11. https://studentaid.gov/data-center/student/loan-forgiveness/pslf-data

12. https://www.nytimes.com/2019/04/12/your-money/public-service-loan-forgiveness.html

13. https://studentaid.gov/manage-loans/repayment/plans/income-driven

14. https://www.lrp.nih.gov/eligibility-programs

Technology can be used to enhance communication, increase patient safety, and improve overall patient care. For example, many physicians have arranged for remote access to medical records and established a unique system of communication via a patient access support portal. A patient portal is a secure online website that provides patients 24-hour, on-demand access to their health information. Patient portals, while popular and oftentimes quite helpful, are not without drawbacks. Communication by electronic means with your patient can be viewed by some as impersonal and can make patients less tolerant to what they perceive to be a mistake, error, or unwanted outcome. A decrease in face-to-face contact and communication with your patient also gives you less time to resolve any conflict or disagreement. While communication via a patient access support portal has the potential to free up medical staff for direct patient care, such communication also carries liability risk.

Patient access support portal

A physician’s legal responsibility to communicate in a timely and accurate manner does not change, irrespective of the form of communication. However, communication via a patient access portal does have some unique features that must be considered by the practitioner. Practitioners must remember that any communication via the patient portal creates a permanent record, which can and will be used in the event of litigation. For example, when responding to a patient inquiry about a specific complaint, treatment provided, or test result, it will be presumed that the physician had access to the patient’s full medical record and that the full record will be utilized in making a response. Accessing the patient’s chart will leave an audit trail that will provide what is known as metadata, which in the context of electronic medical records, is what allows technicians to verify that the patient record was accessed, and it provides details as to when, and for how long it was accessed. These records are frequently pursued in litigation, so you must understand that parties can often re-create an intricate and accurate timeline of events. While state courts are divided on the issue of whether metadata contained within electronic medical records is discoverable, recent federal court decisions have held that such data is discoverable pursuant to the Federal Rules of Civil Procedure. Thus, once a patient has communicated with you via the portal, you will be responsible for responding in an appropriate and prompt fashion. For these reasons, it is imperative that you create an agreement with your patients as to how the portal will be used and clearly set forth the rules for such use.

Patient portal policies and procedures

In creating patient portal user agreements (See "Sample User Agreement," attached below), it is crucial that an agreement clearly identify the policies and procedures for use. A patient portal user agreement should:

• Set forth the rules and regulations for portal use.
• Include a verification procedure that requires the patients to confirm that they have the legal capacity to consent to the terms of use. This is especially important when treating patients with mental disability, elderly patients with dementia, minors, and any other individuals who may not legally consent.
• Include a verification procedure that requires the patients to confirm that they understand and agree to abide by the user agreement rules.
• Include a detailed list that informs users of the risks and benefits of communicating via the patient portal.
• Stress that communication through the patient portal is for nonemergent matters only.
• Set forth permissible topics for use, such as communicating with the physician or staff, obtaining test results or records, and setting, changing, or canceling appointments.
• Clearly indicate certain topics that should not be discussed via the patient portal, including mental health issues.
• Reiterate that communication via the patient portal is only one option, and that all other standard methods of communication remain available. In doing so, provide office telephone numbers, hotlines, and email addresses for convenience.
• Inform the patients that they should call the office with any questions or concerns regarding use of the patient portal.
• Include a statement that the patient should call 911 or proceed directly to the nearest hospital for any and all urgent or emergent medical matters.

Other considerations

There are, however, equally critical considerations to be made that go beyond the core details of the user agreement. For instance, use of the patient access portal should be limited to only current or active patients, and you should stress to patients the importance of keeping their contact information updated and accurate. This is especially vital in situations in which a patient is unresponsive to communication via the portal, as your staff will need to follow up via other means of communication. It is also imperative to ensure the patient portal is programmed to promptly alert you or your staff following an inquiry from the patient as the patient will likely expect an immediate response.

Notably, communication via the patient portal must still comply with the Health Insurance Portability and Accountability Act (HIPAA). This means that only authorized users are able to access records within the patient portal. To ensure compliance with HIPAA, all users should be instructed in the appropriate practices of maintaining patient privacy. This includes barring the use of shared passwords amongst multiple individuals, requiring that users enable an auto log-off setting, and programming work stations to turn off automatically after brief periods of nonuse. Further, all communications in the patient portal should be encrypted to prevent the patient’s sensitive information from being accessed in the event of an attempted security breach.

Finally, depending upon the practice, there may be instances in which someone other than the patient’s physician would be reading and responding to patient queries. In these situations, the patient should be informed of such potential. This way, if the communication is intended only for the physician, the patient will be afforded the opportunity to call the physician directly rather than communicate via the patient portal.

While the use of patient access portals is becoming far more prevalent, as they offer many practical benefits ranging from increased convenience and efficiency to enhanced patient care, they also carry the potential for increased liability exposure. As such, it is vital that physicians weigh all potential risks and benefits that are inherent in the use of patient access portals prior to making the decision to implement such technology.

Mr. Mills is an equity partner in Cunningham, Meyer & Vedrine, Chicago.

Technology can be used to enhance communication, increase patient safety, and improve overall patient care. For example, many physicians have arranged for remote access to medical records and established a unique system of communication via a patient access support portal. A patient portal is a secure online website that provides patients 24-hour, on-demand access to their health information. Patient portals, while popular and oftentimes quite helpful, are not without drawbacks. Communication by electronic means with your patient can be viewed by some as impersonal and can make patients less tolerant to what they perceive to be a mistake, error, or unwanted outcome. A decrease in face-to-face contact and communication with your patient also gives you less time to resolve any conflict or disagreement. While communication via a patient access support portal has the potential to free up medical staff for direct patient care, such communication also carries liability risk.

Patient access support portal

A physician’s legal responsibility to communicate in a timely and accurate manner does not change, irrespective of the form of communication. However, communication via a patient access portal does have some unique features that must be considered by the practitioner. Practitioners must remember that any communication via the patient portal creates a permanent record, which can and will be used in the event of litigation. For example, when responding to a patient inquiry about a specific complaint, treatment provided, or test result, it will be presumed that the physician had access to the patient’s full medical record and that the full record will be utilized in making a response. Accessing the patient’s chart will leave an audit trail that will provide what is known as metadata, which in the context of electronic medical records, is what allows technicians to verify that the patient record was accessed, and it provides details as to when, and for how long it was accessed. These records are frequently pursued in litigation, so you must understand that parties can often re-create an intricate and accurate timeline of events. While state courts are divided on the issue of whether metadata contained within electronic medical records is discoverable, recent federal court decisions have held that such data is discoverable pursuant to the Federal Rules of Civil Procedure. Thus, once a patient has communicated with you via the portal, you will be responsible for responding in an appropriate and prompt fashion. For these reasons, it is imperative that you create an agreement with your patients as to how the portal will be used and clearly set forth the rules for such use.

Patient portal policies and procedures

In creating patient portal user agreements (See "Sample User Agreement," attached below), it is crucial that an agreement clearly identify the policies and procedures for use. A patient portal user agreement should:

• Set forth the rules and regulations for portal use.
• Include a verification procedure that requires the patients to confirm that they have the legal capacity to consent to the terms of use. This is especially important when treating patients with mental disability, elderly patients with dementia, minors, and any other individuals who may not legally consent.
• Include a verification procedure that requires the patients to confirm that they understand and agree to abide by the user agreement rules.
• Include a detailed list that informs users of the risks and benefits of communicating via the patient portal.
• Stress that communication through the patient portal is for nonemergent matters only.
• Set forth permissible topics for use, such as communicating with the physician or staff, obtaining test results or records, and setting, changing, or canceling appointments.
• Clearly indicate certain topics that should not be discussed via the patient portal, including mental health issues.
• Reiterate that communication via the patient portal is only one option, and that all other standard methods of communication remain available. In doing so, provide office telephone numbers, hotlines, and email addresses for convenience.
• Inform the patients that they should call the office with any questions or concerns regarding use of the patient portal.
• Include a statement that the patient should call 911 or proceed directly to the nearest hospital for any and all urgent or emergent medical matters.

Other considerations

There are, however, equally critical considerations to be made that go beyond the core details of the user agreement. For instance, use of the patient access portal should be limited to only current or active patients, and you should stress to patients the importance of keeping their contact information updated and accurate. This is especially vital in situations in which a patient is unresponsive to communication via the portal, as your staff will need to follow up via other means of communication. It is also imperative to ensure the patient portal is programmed to promptly alert you or your staff following an inquiry from the patient as the patient will likely expect an immediate response.

Notably, communication via the patient portal must still comply with the Health Insurance Portability and Accountability Act (HIPAA). This means that only authorized users are able to access records within the patient portal. To ensure compliance with HIPAA, all users should be instructed in the appropriate practices of maintaining patient privacy. This includes barring the use of shared passwords amongst multiple individuals, requiring that users enable an auto log-off setting, and programming work stations to turn off automatically after brief periods of nonuse. Further, all communications in the patient portal should be encrypted to prevent the patient’s sensitive information from being accessed in the event of an attempted security breach.

Finally, depending upon the practice, there may be instances in which someone other than the patient’s physician would be reading and responding to patient queries. In these situations, the patient should be informed of such potential. This way, if the communication is intended only for the physician, the patient will be afforded the opportunity to call the physician directly rather than communicate via the patient portal.

While the use of patient access portals is becoming far more prevalent, as they offer many practical benefits ranging from increased convenience and efficiency to enhanced patient care, they also carry the potential for increased liability exposure. As such, it is vital that physicians weigh all potential risks and benefits that are inherent in the use of patient access portals prior to making the decision to implement such technology.

Mr. Mills is an equity partner in Cunningham, Meyer & Vedrine, Chicago.

Technology can be used to enhance communication, increase patient safety, and improve overall patient care. For example, many physicians have arranged for remote access to medical records and established a unique system of communication via a patient access support portal. A patient portal is a secure online website that provides patients 24-hour, on-demand access to their health information. Patient portals, while popular and oftentimes quite helpful, are not without drawbacks. Communication by electronic means with your patient can be viewed by some as impersonal and can make patients less tolerant to what they perceive to be a mistake, error, or unwanted outcome. A decrease in face-to-face contact and communication with your patient also gives you less time to resolve any conflict or disagreement. While communication via a patient access support portal has the potential to free up medical staff for direct patient care, such communication also carries liability risk.

Patient access support portal

A physician’s legal responsibility to communicate in a timely and accurate manner does not change, irrespective of the form of communication. However, communication via a patient access portal does have some unique features that must be considered by the practitioner. Practitioners must remember that any communication via the patient portal creates a permanent record, which can and will be used in the event of litigation. For example, when responding to a patient inquiry about a specific complaint, treatment provided, or test result, it will be presumed that the physician had access to the patient’s full medical record and that the full record will be utilized in making a response. Accessing the patient’s chart will leave an audit trail that will provide what is known as metadata, which in the context of electronic medical records, is what allows technicians to verify that the patient record was accessed, and it provides details as to when, and for how long it was accessed. These records are frequently pursued in litigation, so you must understand that parties can often re-create an intricate and accurate timeline of events. While state courts are divided on the issue of whether metadata contained within electronic medical records is discoverable, recent federal court decisions have held that such data is discoverable pursuant to the Federal Rules of Civil Procedure. Thus, once a patient has communicated with you via the portal, you will be responsible for responding in an appropriate and prompt fashion. For these reasons, it is imperative that you create an agreement with your patients as to how the portal will be used and clearly set forth the rules for such use.

Patient portal policies and procedures

In creating patient portal user agreements (See "Sample User Agreement," attached below), it is crucial that an agreement clearly identify the policies and procedures for use. A patient portal user agreement should:

• Set forth the rules and regulations for portal use.
• Include a verification procedure that requires the patients to confirm that they have the legal capacity to consent to the terms of use. This is especially important when treating patients with mental disability, elderly patients with dementia, minors, and any other individuals who may not legally consent.
• Include a verification procedure that requires the patients to confirm that they understand and agree to abide by the user agreement rules.
• Include a detailed list that informs users of the risks and benefits of communicating via the patient portal.
• Stress that communication through the patient portal is for nonemergent matters only.
• Set forth permissible topics for use, such as communicating with the physician or staff, obtaining test results or records, and setting, changing, or canceling appointments.
• Clearly indicate certain topics that should not be discussed via the patient portal, including mental health issues.
• Reiterate that communication via the patient portal is only one option, and that all other standard methods of communication remain available. In doing so, provide office telephone numbers, hotlines, and email addresses for convenience.
• Inform the patients that they should call the office with any questions or concerns regarding use of the patient portal.
• Include a statement that the patient should call 911 or proceed directly to the nearest hospital for any and all urgent or emergent medical matters.

Other considerations

There are, however, equally critical considerations to be made that go beyond the core details of the user agreement. For instance, use of the patient access portal should be limited to only current or active patients, and you should stress to patients the importance of keeping their contact information updated and accurate. This is especially vital in situations in which a patient is unresponsive to communication via the portal, as your staff will need to follow up via other means of communication. It is also imperative to ensure the patient portal is programmed to promptly alert you or your staff following an inquiry from the patient as the patient will likely expect an immediate response.

Notably, communication via the patient portal must still comply with the Health Insurance Portability and Accountability Act (HIPAA). This means that only authorized users are able to access records within the patient portal. To ensure compliance with HIPAA, all users should be instructed in the appropriate practices of maintaining patient privacy. This includes barring the use of shared passwords amongst multiple individuals, requiring that users enable an auto log-off setting, and programming work stations to turn off automatically after brief periods of nonuse. Further, all communications in the patient portal should be encrypted to prevent the patient’s sensitive information from being accessed in the event of an attempted security breach.

Finally, depending upon the practice, there may be instances in which someone other than the patient’s physician would be reading and responding to patient queries. In these situations, the patient should be informed of such potential. This way, if the communication is intended only for the physician, the patient will be afforded the opportunity to call the physician directly rather than communicate via the patient portal.

While the use of patient access portals is becoming far more prevalent, as they offer many practical benefits ranging from increased convenience and efficiency to enhanced patient care, they also carry the potential for increased liability exposure. As such, it is vital that physicians weigh all potential risks and benefits that are inherent in the use of patient access portals prior to making the decision to implement such technology.

Mr. Mills is an equity partner in Cunningham, Meyer & Vedrine, Chicago.

As medical professionals, you may have encountered patients with serious illnesses and asked yourself the following questions: What if I was in that situation? Where will my assets go when I die? What will happen to my loved ones, and will they be taken care of? Who would handle my affairs if I became ill? These important questions can only be addressed through effective estate planning.

Everyone needs an estate plan regardless of age, health, and financial or family situation. An effective estate plan provides for the orderly management and disposition of your assets upon your death. In addition, as medical professionals may appreciate, an effective estate plan appoints individuals to manage your financial affairs and make health care decisions for you in the event that you become physically or mentally incapacitated.

The most common estate planning tool is a will, which dictates how your assets pass at death. In addition, a will identifies the personal representative of your estate (that is, the person who will see that your assets pass in accordance with your wishes) and, in many states, identifies the guardian of any minor children. Although a court will make the ultimate determination of who is appointed as the guardian, courts typically give significant weight to the person named in a will.

If you die “intestate,” meaning that you died without a valid will, your assets will be distributed in accordance with your state’s intestacy statutes, and any interested person (as opposed to the individual of your choice) may be appointed as the personal representative of your estate. Therefore, to ensure that your property goes to the individuals of your choice and that your final affairs are handled by the person you trust, a will is essential.

In many states, a revocable living trust can be equally beneficial. Like a will, a revocable living trust will dictate how your property passes at death and appoints a trustee to see that the property is distributed in accordance with your wishes. Revocable living trusts can be great tools for incapacity planning and, unlike a will, are not required to be recorded, so the trust agreement can remain private. The assets that are held in a revocable living trust also avoid the often lengthy and expensive probate process, which generally includes the preparation and filing of a petition to open the estate, an inventory identifying the assets of the estate, and an accounting that details all assets received and distributed, followed by the payment of fees based upon the value of the probate estate.

In many situations, leaving assets to young, disabled, or troubled children would result in catastrophic consequences, such as disqualification for government benefits, dissipation of assets for inappropriate uses, or attachment by creditors. Further, for wealthy individuals, outright distributions to spouses could lead to unnecessary estate tax. Wills and revocable trusts can protect against these issues by requiring that, at death, the decedent’s assets are held in further trust for these individuals.

There are various types of trusts that can help ensure that your assets are used for the benefit of your loved one while avoiding any unintended consequences, some of which include the following:

• Special needs trusts, which allow the trustee to use the trust funds for the benefit of the disabled beneficiary without disqualifying the beneficiary from important government benefits.
• Spendthrift trusts, which can protect the trust assets from claims of creditors or property division in a divorce action.
• Marital trusts, which can be used to reduce taxes and ensure that property will be distributed pursuant to your wishes upon the death of your spouse.
• Dynasty trusts, which can be used to protect assets for many generations and, in doing so, reduce the amount of federal and state transfer taxes.

Whether you use a will or revocable living trust, it is critical to coordinate the beneficiary designations of assets such as retirement accounts and life insurance policies, as well as any other account that passes by beneficiary designation. These beneficiary designations trump the provisions of your will and revocable living trust. Likewise, property owned jointly with another person as joint tenants with the right of survivorship, or with a spouse as tenants by the entirety, will pass directly to the joint owner and not pursuant to the terms of your will or revocable trust.

An effective estate plan involves not just planning for death, but also for your incapacity. A durable power of attorney allows you to select an agent or agents to manage your property during your lifetime. The power of attorney can become effective immediately so that the agent can act on your behalf upon execution of the document or the power of attorney can become effective only if and when you become incapacitated.

A durable power of attorney for health care (or advance health care directive) permits you to appoint an agent to make health care decisions on your behalf in the event that you cannot make your own decisions. In addition, should you become permanently unconscious or in a terminal condition, it permits you to appoint an agent who can withhold or withdraw life-sustaining treatment. With a living will, you can express in writing the circumstances under which you do or do not want artificial life-sustaining measures.

With respect to these powers of attorney, the persons that you appoint as your agents should be people that you trust. It is also important to have conversations with your designated agents to ensure that they understand their responsibilities and your wishes. Without these powers of attorney, in the event of your incapacitation, a court will appoint a guardian. The guardian may not be the person you would have appointed, and it will result in annual, and burdensome, court filings.

As busy medical professionals, it may be difficult to find time to develop an estate plan and you may believe that there is plenty of time to do it in the future. It is important to begin thinking about your estate-planning goals and to speak with an attorney to help develop and draft your estate-planning documents. If you already have estate-planning documents, it is important to review those documents periodically to ensure that your estate-planning objectives have remained the same and, if they have changed, to update your documents.

No one knows what the future will hold, so it is important to consult with a local attorney to establish or review your estate plan now. If you do, you will be comforted by the fact that you and your loved ones will be taken care of in accordance with your wishes if you are unable to do so in the future.
 

Mr. D’Emilio is a managing member and Mr. Riley is an associate at McCollom D’Emilio Smith Uebler, Wilmington, Del.

As medical professionals, you may have encountered patients with serious illnesses and asked yourself the following questions: What if I was in that situation? Where will my assets go when I die? What will happen to my loved ones, and will they be taken care of? Who would handle my affairs if I became ill? These important questions can only be addressed through effective estate planning.

Everyone needs an estate plan regardless of age, health, and financial or family situation. An effective estate plan provides for the orderly management and disposition of your assets upon your death. In addition, as medical professionals may appreciate, an effective estate plan appoints individuals to manage your financial affairs and make health care decisions for you in the event that you become physically or mentally incapacitated.

The most common estate planning tool is a will, which dictates how your assets pass at death. In addition, a will identifies the personal representative of your estate (that is, the person who will see that your assets pass in accordance with your wishes) and, in many states, identifies the guardian of any minor children. Although a court will make the ultimate determination of who is appointed as the guardian, courts typically give significant weight to the person named in a will.

If you die “intestate,” meaning that you died without a valid will, your assets will be distributed in accordance with your state’s intestacy statutes, and any interested person (as opposed to the individual of your choice) may be appointed as the personal representative of your estate. Therefore, to ensure that your property goes to the individuals of your choice and that your final affairs are handled by the person you trust, a will is essential.

In many states, a revocable living trust can be equally beneficial. Like a will, a revocable living trust will dictate how your property passes at death and appoints a trustee to see that the property is distributed in accordance with your wishes. Revocable living trusts can be great tools for incapacity planning and, unlike a will, are not required to be recorded, so the trust agreement can remain private. The assets that are held in a revocable living trust also avoid the often lengthy and expensive probate process, which generally includes the preparation and filing of a petition to open the estate, an inventory identifying the assets of the estate, and an accounting that details all assets received and distributed, followed by the payment of fees based upon the value of the probate estate.

In many situations, leaving assets to young, disabled, or troubled children would result in catastrophic consequences, such as disqualification for government benefits, dissipation of assets for inappropriate uses, or attachment by creditors. Further, for wealthy individuals, outright distributions to spouses could lead to unnecessary estate tax. Wills and revocable trusts can protect against these issues by requiring that, at death, the decedent’s assets are held in further trust for these individuals.

There are various types of trusts that can help ensure that your assets are used for the benefit of your loved one while avoiding any unintended consequences, some of which include the following:

• Special needs trusts, which allow the trustee to use the trust funds for the benefit of the disabled beneficiary without disqualifying the beneficiary from important government benefits.
• Spendthrift trusts, which can protect the trust assets from claims of creditors or property division in a divorce action.
• Marital trusts, which can be used to reduce taxes and ensure that property will be distributed pursuant to your wishes upon the death of your spouse.
• Dynasty trusts, which can be used to protect assets for many generations and, in doing so, reduce the amount of federal and state transfer taxes.

Whether you use a will or revocable living trust, it is critical to coordinate the beneficiary designations of assets such as retirement accounts and life insurance policies, as well as any other account that passes by beneficiary designation. These beneficiary designations trump the provisions of your will and revocable living trust. Likewise, property owned jointly with another person as joint tenants with the right of survivorship, or with a spouse as tenants by the entirety, will pass directly to the joint owner and not pursuant to the terms of your will or revocable trust.

An effective estate plan involves not just planning for death, but also for your incapacity. A durable power of attorney allows you to select an agent or agents to manage your property during your lifetime. The power of attorney can become effective immediately so that the agent can act on your behalf upon execution of the document or the power of attorney can become effective only if and when you become incapacitated.

A durable power of attorney for health care (or advance health care directive) permits you to appoint an agent to make health care decisions on your behalf in the event that you cannot make your own decisions. In addition, should you become permanently unconscious or in a terminal condition, it permits you to appoint an agent who can withhold or withdraw life-sustaining treatment. With a living will, you can express in writing the circumstances under which you do or do not want artificial life-sustaining measures.

With respect to these powers of attorney, the persons that you appoint as your agents should be people that you trust. It is also important to have conversations with your designated agents to ensure that they understand their responsibilities and your wishes. Without these powers of attorney, in the event of your incapacitation, a court will appoint a guardian. The guardian may not be the person you would have appointed, and it will result in annual, and burdensome, court filings.

As busy medical professionals, it may be difficult to find time to develop an estate plan and you may believe that there is plenty of time to do it in the future. It is important to begin thinking about your estate-planning goals and to speak with an attorney to help develop and draft your estate-planning documents. If you already have estate-planning documents, it is important to review those documents periodically to ensure that your estate-planning objectives have remained the same and, if they have changed, to update your documents.

No one knows what the future will hold, so it is important to consult with a local attorney to establish or review your estate plan now. If you do, you will be comforted by the fact that you and your loved ones will be taken care of in accordance with your wishes if you are unable to do so in the future.
 

Mr. D’Emilio is a managing member and Mr. Riley is an associate at McCollom D’Emilio Smith Uebler, Wilmington, Del.

As medical professionals, you may have encountered patients with serious illnesses and asked yourself the following questions: What if I was in that situation? Where will my assets go when I die? What will happen to my loved ones, and will they be taken care of? Who would handle my affairs if I became ill? These important questions can only be addressed through effective estate planning.

Everyone needs an estate plan regardless of age, health, and financial or family situation. An effective estate plan provides for the orderly management and disposition of your assets upon your death. In addition, as medical professionals may appreciate, an effective estate plan appoints individuals to manage your financial affairs and make health care decisions for you in the event that you become physically or mentally incapacitated.

The most common estate planning tool is a will, which dictates how your assets pass at death. In addition, a will identifies the personal representative of your estate (that is, the person who will see that your assets pass in accordance with your wishes) and, in many states, identifies the guardian of any minor children. Although a court will make the ultimate determination of who is appointed as the guardian, courts typically give significant weight to the person named in a will.

If you die “intestate,” meaning that you died without a valid will, your assets will be distributed in accordance with your state’s intestacy statutes, and any interested person (as opposed to the individual of your choice) may be appointed as the personal representative of your estate. Therefore, to ensure that your property goes to the individuals of your choice and that your final affairs are handled by the person you trust, a will is essential.

In many states, a revocable living trust can be equally beneficial. Like a will, a revocable living trust will dictate how your property passes at death and appoints a trustee to see that the property is distributed in accordance with your wishes. Revocable living trusts can be great tools for incapacity planning and, unlike a will, are not required to be recorded, so the trust agreement can remain private. The assets that are held in a revocable living trust also avoid the often lengthy and expensive probate process, which generally includes the preparation and filing of a petition to open the estate, an inventory identifying the assets of the estate, and an accounting that details all assets received and distributed, followed by the payment of fees based upon the value of the probate estate.

In many situations, leaving assets to young, disabled, or troubled children would result in catastrophic consequences, such as disqualification for government benefits, dissipation of assets for inappropriate uses, or attachment by creditors. Further, for wealthy individuals, outright distributions to spouses could lead to unnecessary estate tax. Wills and revocable trusts can protect against these issues by requiring that, at death, the decedent’s assets are held in further trust for these individuals.

There are various types of trusts that can help ensure that your assets are used for the benefit of your loved one while avoiding any unintended consequences, some of which include the following:

• Special needs trusts, which allow the trustee to use the trust funds for the benefit of the disabled beneficiary without disqualifying the beneficiary from important government benefits.
• Spendthrift trusts, which can protect the trust assets from claims of creditors or property division in a divorce action.
• Marital trusts, which can be used to reduce taxes and ensure that property will be distributed pursuant to your wishes upon the death of your spouse.
• Dynasty trusts, which can be used to protect assets for many generations and, in doing so, reduce the amount of federal and state transfer taxes.

Whether you use a will or revocable living trust, it is critical to coordinate the beneficiary designations of assets such as retirement accounts and life insurance policies, as well as any other account that passes by beneficiary designation. These beneficiary designations trump the provisions of your will and revocable living trust. Likewise, property owned jointly with another person as joint tenants with the right of survivorship, or with a spouse as tenants by the entirety, will pass directly to the joint owner and not pursuant to the terms of your will or revocable trust.

An effective estate plan involves not just planning for death, but also for your incapacity. A durable power of attorney allows you to select an agent or agents to manage your property during your lifetime. The power of attorney can become effective immediately so that the agent can act on your behalf upon execution of the document or the power of attorney can become effective only if and when you become incapacitated.

A durable power of attorney for health care (or advance health care directive) permits you to appoint an agent to make health care decisions on your behalf in the event that you cannot make your own decisions. In addition, should you become permanently unconscious or in a terminal condition, it permits you to appoint an agent who can withhold or withdraw life-sustaining treatment. With a living will, you can express in writing the circumstances under which you do or do not want artificial life-sustaining measures.

With respect to these powers of attorney, the persons that you appoint as your agents should be people that you trust. It is also important to have conversations with your designated agents to ensure that they understand their responsibilities and your wishes. Without these powers of attorney, in the event of your incapacitation, a court will appoint a guardian. The guardian may not be the person you would have appointed, and it will result in annual, and burdensome, court filings.

As busy medical professionals, it may be difficult to find time to develop an estate plan and you may believe that there is plenty of time to do it in the future. It is important to begin thinking about your estate-planning goals and to speak with an attorney to help develop and draft your estate-planning documents. If you already have estate-planning documents, it is important to review those documents periodically to ensure that your estate-planning objectives have remained the same and, if they have changed, to update your documents.

No one knows what the future will hold, so it is important to consult with a local attorney to establish or review your estate plan now. If you do, you will be comforted by the fact that you and your loved ones will be taken care of in accordance with your wishes if you are unable to do so in the future.
 

Mr. D’Emilio is a managing member and Mr. Riley is an associate at McCollom D’Emilio Smith Uebler, Wilmington, Del.