Wearables and Professional Liability

When it comes to wearable devices, make sure you consider these questions and have these conversation-starters with your patients.

Posted in Physician Connection on Wednesday, August 25, 2021

What Questions Might Come Up in Court?

From a professional liability perspective, physician practices should be able to answer the following questions.

1. Is the data “timely and accurately” reviewed, addressed and who is responsible during each of these steps?
2. Has the patient’s device been investigated to help ensure accuracy?
3. Is the patient using the device properly?
4. What duty does the patient have to inform the physician of changes, versus the physician’s liability in monitoring for changes?

Other questions physicians should answer:

1. Have you considered fraud and abuse laws when entering into agreements (especially for practices receiving reimbursement from Medicare or Medicaid)?
2. Are you aware of consumer protection laws and how they regulate deceptive and unfair business practices, as it relates to how you communicate about devices and their potential benefits?

Important Conversations: How Technology Impacts Patient Health

When it comes to the health and wellness of your patients, technology plays a big role. Knowing how to talk to patients about their use of tech—and how they interpret their own health data—can be part of a good therapeutic relationship.

1. Make sure patients understand that the quality of the data their device provides is out of the provider’s control. Devices can easily become damaged and the algorithm the device uses can become outdated.
2. Watch for signs of anxiety emerging from use of wearable tech. Are they self-diagnosing themselves based on the data they are seeing? Are they having obsessive thoughts about reaching their daily targets?
3. What looks like healthy behavior may not necessarily be healthy behavior. While there isn’t evidence that fitness trackers can cause disordered eating and behaviors, there’s growing evidence that people with eating disorders may use wearables to reinforce unhealthy behaviors.    

Given the continued popularity of wearable health technology, health care providers should actively engage in creating policies and procedures that will improve overall patient health and safety. 

Additional Resources

The American Medical Association understands that clinical integration of digital tools is lacking. They’ve implemented a Digital Health Implementation Playbook, which outlines key steps, best practices and resources to help physicians care for patients outside of the exam room. Download the Remote Patient Monitoring Implementation Playbook overview, a 96-page PDF with comprehensive guidance on planning, implementing, and collaborating in support of monitoring chronic health conditions. The aim is to, over time, collect data for team members to manage and treat chronic conditions in ways that are timely, meaningful, and realistic for patients. Additionally, the guide aims to help patients engage in their own care in ways that impact treatment and allow them to become better self-advocates.

Reducing Cost of Care: Insurance Companies and Employers Incentivizing Wearables

One estimate says that the ability to monitor patients remotely using wearable technology has the potential to save nearly $200 billion across all conditions over 25 years.

Insurance companies are getting on board, as well. Because the technology incentivizes behaviors that reduce hospital visits and readmissions, insurers can “lessen the rising cost per patient by using wearables as a means of increasing customer life value.”

Employers are also keyed into the market, Insider Intelligence research states “healthier corporate culture is shown to reduce employee turnover — employers who offer five or more well-being ‘best practices’ had an average turnover of 18%, compared to 29% for those that offer two or fewer.

Wearables may have the potential to transform patient care, but privacy issues, system interoperability, and patient data overload are a challenge. There are a number of health organizations that have started integrating this patient device data into patient portals. A recent study looked at 16 health systems partnering with start-ups to address the challenges of meaningful use and streamline provider workflows. Insurance companies such as Oscar Health, United Healthcare, Humana and John Hancock are also encouraging and incentivizing wearables. These rewards programs incentivize patients to participate. For example, patients can earn money or prizes for walking a certain number of steps per day. Personalizing the patient’s experience — such as facilitating conversation between a provider or artificial intelligence bot or providing assessments so patients could better understand their health — was also important.

Wearable 3-Part Series

Risk management activities, if applicable, must be completed 90 days before your renewal.