The Doctor Will See You

May 18, 2020, was set to be a big day for the Texas bar. On that Monday, a jury pool convened on Zoom for jury selection for an insurance dispute, marking one of the first efforts in the country to conduct a trial-by-jury via videoconference. One of the judges on the Zoom call was reportedly heartened by the internet savvy of some of the prospective jurors who reached out ahead of time to confirm that they did in fact have jury duty and that the summons was not a phishing scam. Judges and lawyers on the call were likely less heartened when, during those same court proceedings, one of the prospective jurors walked off to take a phone call.

The move from physical to online courts, spurred suddenly, unexpectedly, and largely out of necessity by the COVID-19 crisis, will undoubtedly come with growing pains. Like virtually every other corner of the economy and civic life, the legal profession must now adapt to the new reality of life during and after the COVID-19 pandemic. While the legal profession has dabbled with innovation in recent years—due in no small part to a host of market-related forces (see “Adaptive Innovation”)—the pandemic has supercharged these efforts. To help lawyers understand the implications of these changes, as we often do in this publication, this article offers a comparative perspective of how another profession has thought about its own adaptation to virtual services. Unlike the legal profession, medical doctors and other health care professionals have had a relatively long runway in actively thinking through the provision of high-stakes, highly technical, typically face-to-face professional services conducted remotely by leveraging available technology. After all, distance medicine, which is to say telehealth, has a long history of connecting practitioners and clients—or, in medicine’s case, patients—in ways other than in-person visits to a doctor’s office. As the legal profession plans ahead amid a pandemic with no end in sight, legal practitioners of all stripes have a lot to consider from the development and success of telehealth in medicine.

A snapshot of telehealth’s evolution

Before he became a practicing dermatologist at Massachusetts General Hospital, a professor of dermatology at Harvard Medical School, president of the American Telemedicine Association, and editor in chief of npj Digital Medicine, Dr. Joseph Kvedar was a young clinician scientist in the 1990s looking for a new research project. One day, Kvedar’s department chair asked him to look into the diagnostic potential of an emerging consumer technology—the digital camera. The resulting 1997 study would go on to form a critical piece of a growing body of evidence on the effectiveness of telehealth and remote medical practices. It was also the start of a lifelong career exploring the potential for telemedicine.

Reflecting back on that initial conversation with his department chair, Kvedar recalls his own skepticism. “I was happy to take part in the research project, but at the beginning, I admit, I thought it was a nutty idea,” he says with a laugh. The central research question concerned whether images of the skin produced by a digital camera—itself a new technology—were of sufficient quality to enable dermatologists to make reasonably accurate diagnoses. With the help of a photographer, Kvedar and his colleagues would capture images of patients at their clinic and record the diagnosis of the attending clinician who physically examined each person. Later, they would ask different dermatologists to look at the digital photographs and make their own diagnoses without knowing the conclusion of the attending clinician.

“One dermatologist came in and did 23 cases in about two hours, which is at least double—maybe triple—the efficiency that you get in the office,” recounts Kvedar. What’s more, Kvedar and his team found virtually no difference in the quality of the diagnoses made in person versus those made from looking at digital camera images (digital cameras of the early 1990s, if one remembers, were hardly the ultra-high-res cameras on the back of every modern-day smartphone). “That was when a light bulb went off in my head,” he says. “It’s funny, you don’t know it when you’re doing the work, but that study turned out to be a seminal paper. And sure enough, in the next 10 years or so, there were at least a dozen papers showing the diagnostic concordance of digital images, and they got better and better.”

In telemedicine, you need the ability of a doctor and a patient to be able to connect remotely. That technology is not new.

Dr. Wyatt Decker, CEO of OptumHealth

Kvedar is careful to acknowledge that this was far from the first breakthrough in telehealth. Indeed, as historians note, telehealth has been around in one form or another for a long time. Even the modern conception of telehealth has roots reaching back nearly a century when, following the development and availability of the wireless radio, the prospect of doctors diagnosing patients via radio (and even video) communication technology entered the public imagination through publications like Radio News (see its April 1924 cover) and Science and Invention (see its February 1925 cover). In the 1960s and 1970s, space exploration played a key role in the advancement of telehealth technologies, as it was increasingly unlikely that astronauts would be able to make the commute to a doctor’s office. With the onset of the internet, new means of connecting over long distances emerged, thus broadening telehealth’s possibilities and potential. Now the COVID-19 crisis has thrust telehealth further into the mainstream than ever before.

To current leaders at the intersection of medicine and business, telehealth’s big moment in the present crisis comes as little surprise. One such leader is Dr. Wyatt Decker, CEO of OptumHealth (part of UnitedHealth Group) and former chief medical information officer for the Mayo Clinic in Arizona. “When you consider the adoption of new techniques and technologies, you might look at other industries like electric cars,” says Decker. “There were reasonable electric cars in the 1990s, but it’s only recently that they’ve come into the mainstream. In telemedicine, you need the ability of a doctor and a patient to be able to connect remotely. That technology is not new.”

One example Decker points out is the now-unremarkable practice of doctors and other medical professionals communicating with patients over the phone about health issues. “It is not uncommon for a doctor to speak with a patient on the phone and tell them, ‘Take two aspirin and call me in the morning,’” he says. “So the notion of connecting with your provider through an electronic medium has been around and in use for a long time.” Indeed, while the practice of remote medicine is not new, the name has changed often—much to the chagrin of telehealth proponents like Kvedar trying to focus attention on the practice—including monikers such as “telemedicine,” “connected health,” “mobile health,” “eHealth,” “digital health,” and “distributed health.”

At the same time, Decker notes that telehealth has faced an uphill climb against skeptical stakeholders—patients and providers alike, albeit for different reasons. “On the patient side, there’s a relatable concern about an impersonal interaction,” he says. “For the provider community, there’s been a historic and valid concern about the completeness, accuracy, and ability to diagnose and treat over a video and audio medium.” Over time, he notes, evidence has accrued in telehealth’s favor:

There’s now a body of literature around the ability to effectively manage at least a subset of conditions using telemedicine. The technology has evolved. It’s gotten easier to use, and we have gotten better, as a health care community, about understanding what should be in-scope and out-of-scope for a telehealth visit. That work will continue to get refined, and that’s very important from a medical perspective.

Empirical studies capturing patient and provider attitudes toward telehealth—across a wide array of services, populations, and other contexts—put numbers toward recent developments in attitudes about telehealth. According to a 2015 study of more than 1,700 adult patients (across 11 clinics in California and Texas) who opted to use telehealth when their practitioners were busy, between 94 and 99 percent were “very satisfied” with telehealth, and a third reported preferring telehealth to in-person visits after the experience. A 2019 study surveying obstetric patients and providers in Arkansas, 84 percent of them in “nonmetropolitan counties,” found that upwards of 80 percent of patients considered telehealth to be as good as in-person visits, and more than 90 percent of providers considered telehealth an adequate alternative when in-person visits were difficult or otherwise unobtainable. Some have even found uses for telehealth covering services related to surgery. According to a 2018 study based on 655 “video telehealth encounters” at one institution, 152 of which were immediate post-op visits, 52 percent strongly agreed, 36 percent agreed, and only 5 percent disagreed with the statement “I received the same level of care of an in-person visit.” As we see below, telehealth is far from an ideal and all-encompassing suite of patient care. On the other hand, these studies demonstrate that perhaps certain measures of quality in the pre-COVID-19 system were not exactly ideal either. The discussion, then, turns to which mode (or blend of modes) presents the desired outcome as well as the optimal patient and provider experiences depending on the given context.

Notes from the field: Telehealth in practice

For those who have never had a telehealth appointment, Kvedar walks us through what a typical teledermatology appointment looks like in practice. The process typically begins when a patient schedules the appointment and submits images of the skin, typically through an online patient portal and often taken with an iPhone camera. Next, a nurse or other medical professional will review the images to ensure they are usable by the dermatologist. Then, the call begins. It is important to stress, as Decker does, that telehealth does not necessarily mean a random, never-before-seen doctor on the screen. Indeed, telehealth can and does often occur with physicians whom the patient knows and has specifically chosen.

Some people will indicate they want to come into the office, and my comment is, ‘Absolutely, have them come in then.’

Dr. Joseph Kvedar, president of the American Telemedicine Association

Notably, concerns about bedside manner and the patient’s state of mind take center stage, as Kvedar and others seem to have taken to heart some of the causes for patient skepticism of telehealth that Decker highlights above. The first thing Kvedar says to his telehealth patients is, “Tell me your story.” In his view, it is crucial to understand not just what a given patient’s symptoms are but to understand what specific set of concerns and experiences brought them to the dermatologist that day—which, as Kvedar and Decker both note, includes but often goes beyond the proximate rational for the appointment.

After the patient has had a chance to talk through their reasons for scheduling the telehealth visit, the conversation shifts to what Kvedar sees in the photos, when he walks the patient through his thought process and makes whatever determinations are necessary. Perhaps surprisingly, the onset of widely available videoconferencing technology like Zoom is not a huge breakthrough for dermatology—at least, not in the way one might think. “We could do it by video,” Kvedar concedes. “But in my profession, I need more resolution than the video provides.” Nevertheless, he explains, there is still significant value in the face-to-face aspect of videoconferencing:

It isn’t particularly useful for me as a dermatologist to do it by video, but for the patient’s comfort and my ability to connect with them, it is often beneficial for the patient to see me and me to see the patient. That’s something that we’re thinking and studying through. Now, if you’re a psychiatrist, video is critical because your interviewing the patient is in a sense the physical exam. It varies according to specialty, and what we’re trying to do is create more efficiencies. In some ways that means moving some care into a more asynchronous mode while also realizing that one critical part of it is the patient’s need to feel cared for. It isn’t just transactional—it’s health care. Every patient’s a little different. Some people will indicate they want to come into the office, and my comment is, Absolutely, have them come in then.

At the same time, Kvedar notes there are plenty of instances where patients likely don’t need (or feel the need) to come into a physical office or even take advantage of virtual face-to-face interactions with their doctors. Moreover, correctly discerning the types of medical interactions that do not require live engagement might increase overall access given individuals’ potential reluctance to go to the doctor for routine matters. Getting oral contraceptives, Kvedar suggests, is fairly straightforward and suited to online, impersonal processes. Likewise, not all of his patients who come to him for acne treatment are looking for a live experience, whether in-person or virtual, when they could just as effectively get what they need from an asynchronous process (meaning all parties do not need to be active at the moment of communication, like an email or text message) that uses iPhone selfies. “Those are the kinds of things we’re teasing out now as we look forward to how patients feel about telehealth in different contexts,” Kvedar says. Sometimes that might mean more close contact (technology enabled or otherwise), but other times it might mean less. “And we’re finding more and more patients saying things like, ‘I didn’t have to wait in the waiting room. I got it done quickly, it was convenient, and it was high quality.’”

Throughout every telehealth interaction, Kvedar stresses the importance of maintaining a “web-side manner,” which centers on making the experience as patient-centric as possible. In short, a physician behaves differently on video—and Kvedar argues they should. “There are very simple things to remember, like looking into the camera and not staring at the desk,” he explains. “I’m sure a lot of us have seen it in Zoom calls by now, where people don’t know how to use the technology. We can’t have our doctors staring at the desk when they’re talking to their patients.”

Expressing a similar sentiment, Decker sees this as an extension of the same trust a physician needs to cultivate through their in-person visits. “We’ve found it’s very, very important for the provider to be very present and to have a calm and listening demeanor,” he says. “Those types of things can help rapidly create the trust and confidence that a patient needs to maybe share something that they’re either nervous about or is maybe awkward or very personal in nature but impacts their health.”

Building an integrated approach: Tensions in telehealth and in-person care

The medical profession has, with the benefit of time, experienced many of the tradeoffs that come with telehealth even before the current crisis—and, indeed, they cut both ways. Decker notes that telehealth “is much more nuanced” than just a videoconference call. “It’s not just about having the technology to interact with a provider,” he explains. “It’s about how that technology is used and does it enhance my experience or does it degrade my experience with my provider? Telemedicine can be very well executed or it can be clumsily executed.”

One key difference is that the scope of a telehealth visit is generally narrower than an office visit, and this comes with implications. “When you go to the doctor’s office for, say, a respiratory illness, you might also share with her this lump that has been there for two months that actually turns out to be more significant than the respiratory illness,” Decker offers by way of example. “Of course, that could still happen on a telehealth visit, but it becomes harder to navigate.”

Ease of access presents another consideration, as telehealth has already shown the potential to increase access to medical services, for instance, in rural or underserved communities where health services are often lacking (for more on rural medicine, see “Addressing the Supply Problem”). “Some of the earlier telehealth pioneers in the 1990s were medical centers in rural settings where it was truly an access issue,” says Decker. “Now, with COVID-19, interestingly, it became an access issue for everybody.”

It’s not just about having the technology to interact with a provider. It’s about how that technology is used and does it enhance my experience.

Dr. Wyatt Decker

Decker cautions, however, that potential improvements in efficiency and access are not ends in themselves. If efficiency, for example, takes priority over patient care rather than being valued in service of patient care, there is a risk of compromising quality. “Imagine if you had a serious concern, and you’re only able to access a symptom checker when you feel strongly that you need to see somebody,” Decker suggests, calling to mind the impersonal and sometimes labyrinthine nature of an automated customer service line. In that analogy, there needs to be a way to hit “0” and reach a human operator. “It’s very important that we embrace these new technologies and create both flexibility and options for patients and providers as well as guidance from providers about how and when you might want to be able to see somebody face-to-face versus through a telehealth solution.”

Decker’s colleague, Marianne D. Short (more on Short below), UnitedHealth Group’s chief legal officer, also emphasizes the importance of privacy in telemedicine. Short notes that, as with in-person visits, telehealth must be done in a way that ensures overall patient confidentiality, a key component of quality in medicine. With all of telehealth’s new opportunities for expanded access come new challenges of operationalization as well.

Kvedar echoes Decker’s sentiments that there are opportunity costs to moving physician visits from physical to virtual spaces. Rather than arguing one is necessarily superior to the other, the point is that they are fundamentally different, albeit integrative, approaches to patient care. “No one should delude themselves into thinking that a phone call or a video call has the same impact as an in-person meeting—intuitively, we all know that,” Kvedar says. There are undeniable advantages to in-person visits, he adds, such as it being easier to make emotional connections with the patient as well as having a full range of nonverbal cues at one’s disposal and the ability to make physical contact, which research indicates makes a difference in patient outcomes. Indeed, many aspects of patient care simply cannot be performed in virtual spaces, such as surgical procedures and other practices that presently require equipment only accessible in physical locations like hospitals and specialist offices (for example, ophthalmology).

To offer some perspective, Kvedar emphasizes that neither method as they currently exist—in-person visits or telehealth visits—are strictly speaking perfect or ideal. He notes that finite sets of resources are involved, such as available funding and physician time, and thus there will always be an element of triaging and doing the best you can with what you have (for more on this in the legal profession, see “The Access to Justice Lab”). “Frame it in terms of the legal profession,” Kvedar suggests. “With unlimited resources, we might all have our own legal counsel on retainer, ready and waiting in our living rooms in the event of a problem, right? But, obviously, we can’t afford that, so everything we do is a compromise.”

Some of the earlier telehealth pioneers in the 1990s were medical centers in rural settings where it was truly an access issue.

Dr. Wyatt Decker

While there are advantages that currently appear unique to in-person interaction, it is also worth noting that aspects of these in-person visits present downsides that telehealth could potentially address—challenges that were perhaps previously considered facts of life rather than problems demanding solutions. Indeed, as Kvedar indicates above, there are plenty of situations where patients might well prefer the convenience or degree of privacy afforded by remote methods of patient care. “Let’s say you need a refill for your blood pressure medicine,” he adds. “If you’re capable of sending me 10 blood pressure readings from your home and happy to do it—and if they look good to me—why should you have to find your way to the doctor’s office for me to tell you that?” Put differently, telehealth has the potential to save valuable resources like time and money for both patients and providers. When Kvedar had his own telehealth epiphany as a clinician scientist in the 1990s, the potential for these types of efficiencies convinced him that telehealth had the potential to revolutionize the way we think about and perform patient care—the potential for an integrative approach that matches the medium of care with the needs and circumstances of the patient.

Enter COVID-19

All these developments have helped set the stage for broad implementations of telehealth in response to the COVID-19 crisis. However, due to the sudden and often seismic shifts in operational behavior demanded by the pandemic, the medical profession is, like any other profession, learning on the fly. Some of these lessons are already coming into focus. If nothing else, both Kvedar and Decker note that they are learning what happens when you scale telehealth up—and fast—as the pandemic has seen the number and proportion of patients using telehealth skyrocket. By Kvedar’s estimate, Mass General did about 1,600 virtual encounters in February 2020. By the beginning of May, they were up to 60,000 per week—a figure that has remained relatively constant ever since. Moving forward, the medical profession will likely aim to strike a balance between in-person and virtual services—what Kvedar calls a “hybrid model”—as they scale up their telehealth efforts to meet demand. Indeed, we are seeing such hybrid arrangements throughout society, including in education (for more on how legal education is envisioning its own hybrid approach, see “In the News”).

One key lesson pertains to the many roles at play in the medical profession. As we have explored elsewhere in The Practice, medicine has made room for other licensed practitioners in addition to doctors, such as nurse practitioners and physician assistants (see “Addressing the Supply Problem”). As we have also seen, medical training and professional practices are combined in ways that lend themselves to forming complex teams of complementary roles, such as hospital teams that include attending physicians, fellows, residents, interns, and medical students all working together (see “Teaching Hospitals and Teaching Teachers”). In “Extending Access and Quality,” Mary Klotman, dean of the Duke School of Medicine, summed up the conventional wisdom in the medical profession on how best to employ this diversity of talent and function: “We want everybody to be able to work up to the maximum limit of their license.”

In this context, the takeaway is twofold: not only is this top-of-license approach to balancing and maximizing the effectiveness of medical teams more important now in the time of COVID-19 than ever, but it also extends in some ways to the use of technology as well. “We’re learning there are new roles that need to be created and that existing roles may need to be rethought,” says Kvedar. The unprecedented circumstances of the pandemic make this clear. For example, as medical providers have sought to triage and screen patients to determine whether telehealth was sufficient for their needs or whether they were better off going to a physical medical facility, there is a real question as to whose job that is. This, after all, is a role that simply did not exist in the same form or extent before the self-quarantine ethos of the pandemic. In Kvedar’s case, nurse practitioners are screening the images that patients submit, but he wonders if that is the best use of their time and expertise. “We can’t afford to pay a nurse to screen those images at scale,” he argues. “They’re a high-paid resource, and they should be doing other things with their time. We’re going to have to create an opportunity for either our patient service coordinators—and of course, they’re busy, too—or someone else to be retrained to do that.” These challenges require some urgency as the COVID-19 crisis looms into the future. After all, if nurse practitioners put their highly valuable time toward triaging dermatology images only to determine that, indeed, an in-person visit is advisable, insurers may be left wondering—and not without justification—what did we just pay for?

This leads to a parallel challenge facing the medical profession: how best to employ technology to improve patient care. Using Mary Kotkin’s terminology, how can technologies, whether telehealth or otherwise, “work up to the maximum limit of their license”? Part of that challenge is acknowledging the gap between the latest advances in medical technology on the one hand and the reality of our capacity to use them on the other. “Some of what we have learned is both saddening and obvious—not everyone has access to the technology needed for telehealth,” Kvedar says. What’s more, the norm in telehealth is more likely to be audio-only communication than video. “Of those 60,000 virtual encounters a week, about 40,000 or more are, for various reasons, by phone,” Kvedar adds. “But in a way, that’s fine. If it turns out that there’s less friction in picking up the phone and fewer things for the patient to do—download an app, open a video, et cetera—then great.” If the goal is providing the best quality care for every patient, the medical profession will need to be thoughtful in how technology is employed in that effort. As Kvedar points out, this includes how telehealth adapts to the needs of its users when they have physical or cognitive impairments.

Despite these challenges, both Kvedar and Decker are optimistic for the future of telehealth. “This is, as many have said, the new normal,” Decker acknowledges. “But in terms of the possibilities we have opened up, it’s incredibly exciting because these technologies can make health care much easier to access, they can make it much more flexible, and they can make the knowledge that’s ensconced inside major medical institutions much more broadly available.”

Lessons for the legal profession

Marianne D. Short has reached three separate pinnacles of the legal profession since graduating from Boston College Law School in 1976. After a decade in private practice at Dorsey & Whitney, Short was appointed to the Minnesota Court of Appeals in 1988, where she served as a justice for 12 years. Several years after returning to Dorsey, she rose to become managing partner of the more-than-600-attorney firm as well as cochair of its appellate and health litigation practices. In 2012, Short was named executive vice president and chief legal officer of UnitedHealth Group, the largest health insurer—and one of the largest companies by annual revenue—in the United States. As chief legal officer, Short advises and oversees all legal, regulatory, and compliance matters—including those related to telehealth.

There’s that personal touch that you get when you go in and visit with the doctor. It’s the same thing we think about as lawyers.

Marianne D. Short, CLO at UnitedHealth Group

From Short’s perspective, telehealth works not only because of the evolving demand but because it has altered the data environment in ways that have markedly improved patient care. “We now have a sophisticated understanding of patients’ medical conditions, comorbidities, and socioeconomic determinants of health, and that drives better patient outcomes and enriches the body of medicine that we can draw on,” she says. “As judges approach the prospect of effectively moving court proceedings online, there are corollaries here worth considering.”

Relying on her experience as both a former judge and the current chief legal officer in the health care industry, Short offers two considerations to bear in mind as online courts proliferate and expand: the integrity of the court and the interpersonal elements of legal practice. To succeed, she suggests, online courts should not be any less of a court than a physical one. That means that the rules and procedures that define the physical court experience must not be sacrificed or limited in the name of efficiency or insufficient capability. In other words, as with telehealth, all the normal standards for integrity still apply. “Integrity is such a big thing when you contemplate such a major shift,” Short says. She continues:

As a judge I do not think I would have a problem with a court being remote provided you can ensure the same level of authenticity, confidentiality, and thoroughness that I would expect in a courtroom. Is there integrity in the way the issues are being presented and in the way each person is displayed? Is there integrity in the evidence that’s being offered? Are individuals afforded the degree of privacy they need? Does it all pass the smell test?

Echoing Decker and Kvedar, Short places a premium on the user experience, consciously aware of some of the subtleties that could be lost in translation to a virtual medium. Just as doctors are having to develop their “web-side manner,” lawyers will need to do that same. “There’s that personal touch that you get when you go in and visit with the doctor,” Short says. “It’s the same thing we think about as lawyers.” She explains:

We can do some things over the phone. We can do some things by Zoom with our clients. But when you’re really down to the nub of something, explaining to a client, ‘This is important now. You’re going to have your deposition taken, and you’re going to be asked this and that by the Department of Justice. Don’t worry, we’ll go over it together.’ There is so much about the ability to offer comfort and instill confidence face to face that I just don’t know translates well to Zoom or phone calls. Lawyers will need to think about how to convey these types of messages in other ways as we move forward.

Short stresses that, while we can debate the relative value of each medium of health care and court proceeding, at the end of the day it is about health and about justice. “Telehealth is certainly exciting, and I think convenient for people, as are ideas around online courts,” she says. “But patients are still at the center of health care, just like laws and those seeking justice are still at the center of courts—whether or not it takes place on a screen.”

What comes next

The current crisis may be the catalyst for the massive and rapid movement to virtual spaces, but it also presents too many variables to know with any certainty how any profession or industry will develop its remote presence. Telehealth offers a useful comparative case study for the legal profession, providing an example of how digitalization efforts can be successful when done thoughtfully and deliberately. As the legal profession scrambles to re-create or reimagine the courtroom remotely, it is worth taking some of the lessons of telehealth to heart while accepting that difference in context.

At the center of telehealth’s development—and, indeed, at the center of its current expansion—has been the needs of the patient. As Drs. Decker and Kvedar emphasize, the question of what is possible in telehealth hinges not only on what works but on what works well. Quality is not sacrificed for the sake of efficiency—the two reinforce each other. Indeed, telehealth has been seen by many as an opportunity to extend access to patient care to those who previously went without, such as traditionally underserved rural populations. Facing an access crisis of its own, the legal profession might similarly approach its digital frontier as an opportunity for progress and growth.

If nothing else, telehealth demonstrates that the shift to remote services is possible despite all the challenges of entrenched tradition and high-stakes outcomes. As Short makes clear, issues of integrity and communication will need to be top of mind for judges and lawyers alike as they work together to move court proceedings to online spaces. The others in the virtual courtroom can begin to do their part by silencing their phones.