COVID-19 and malpractice: New risks to watch for

June 23, 2020

Sean P. Byrne, JD, a medical malpractice defense lawyer, discusses how coronavirus has scrambled a physician's malpractice risks, and what doctors need to do to prepare.

The coronavirus pandemic has affected many aspects of healthcare — including medical malpractice.

Sean P. Byrne, JD, a malpractice defense lawyer, discusses how COVID-19 has scrambled a physician's malpractice risks, and what doctors need to do to prepare.

The following transcript has been edited for length and clarity.

Can you talk a little bit about how COVID-19 this unprecedented pandemic has impacted medical malpractice liability and sort of liability topics in general for physicians?

Byrne: Yes, of course. So the diversion of healthcare resources into treating the pandemic has affected us in the medical liability world significantly. So with our active cases that are ongoing, of course, our healthcare practitioner clients and experts have been really unavailable to participate in those cases. And our court system has kind of put everything on hold. So with active cases, they slow down and come to a halt in some cases. And then with new cases, we're seeing how the pandemic might affect those as well. Okay, great.

Medical Economics: One of the things a lot of physicians are wondering about is increased liability from the pandemic. Can you provide some facts about how this pandemic is specifically impacting your chances of facing a lawsuit?

Byrne: In medical liability cases, the test is always: Did you comply with the standard of care? So did you act like a reasonably prudent provider would act under the same or similar circumstances? But we've never faced the same or similar circumstances with a novel virus and a pandemic like this in the era of modern medicine. So what the law will ultimately define as reasonable health care services that met the standard of care is going to be evolving.

We've seen a couple of responses across the country, state by state, to try to address it. A number of states either by executive action or by legislative change have put in place immunity provisions to protect healthcare professionals from liability claims that may arise in this era. A number of those state laws will say that you cannot be sued for simple negligence which just means a mistake or careless error. You cannot be sued for simple negligence in this era for COVID-19 related claims. Those vary widely across the country in terms of how nimble and what the politics are and what people have done. A number of them are limited to: You can't be sued for COVID-19 related claims that are caused by a lack of resources. And resources can mean PPE, it can mean staffing, it can mean ICU beds.

A number of states have also said, ‘we're going to give you some protection from lawsuits if you practice somewhat outside your scope of practice, but within your license.’ So when we see resources being diverted from one area of hospital to another to fight waves of pandemic patients, state laws have given some protection in those cases.

So the big issues to think about is standard of care. Are you acting reasonably under the circumstances following directives? You should know you have some immunity protections and it's helpful to know what they are in your state as you make decisions at a health care professional level. And then another topic that's coming up is what do we say to our patients and how can we deal with the disclosure of risk.

Medical Economics: What about disclosure of risk? What does that mean, specifically? And what do doctors need to communicate to their patients, and in what way?

Byrne: Start with just the fundamentals, that we've always got an obligation to give our patients advice about risks, benefits, alternatives. So now that we're facing the pandemic, folks have wondered, ‘What do I have to disclose to the patient? And can I protect myself from a lawsuit?’

We deal with that in a couple ways. A lot of providers have drafted, with the assistance of their lawyer and their risk management teams, COVID-19 specific programs. And so that will include protocols you have in place in your office for infection control, patient monitoring, screening employees and patients. It will also include some COVID-specific screening that goes into the patient's medical chart about international travel, about symptoms, about exposure. And then a disclaimer or at least a discussion in your informed consent paperwork, where the patient has acknowledged that they're aware that by being present in the health care environment, they're assuming some risk of contracting the virus despite the best efforts of the provider. So we're dealing with those on a number of fronts, and I've seen practices pivot really quickly to manage that risk.

Medical Economics: We've gotten questions from physicians along the lines of: ‘If I get a patient to sign something, saying that they're assuming risk, does that essentially wipe away my liability?’ Is that true? Can you talk through some of the nuances of that?

Byrne: It's typically not that simple. I mean, most states across the country have a public policy principle that says: We ought not let people waive negligence so, you know, the back of your ticket to a ballgame or the documents you sign before an operation will have some broad language in there acknowledging the risk you're undergoing, but you typically can't waive negligence claims. So those disclaimers and informed consent documents are helpful; they can be damaging if you don't do them. They can help you prove that you did disclose and discuss the risks with the patient.

Ultimately, though, the test is usually going to be: Did you act reasonably? I think it's advisable to include some language about COVID-19 in your discussions with your patients and in your documentation, but it's not a blanket protection against a lawsuit. Interestingly, we have those immunity provisions that have come into play in a number of states that do provide some protection.

What's not crystal clear is: What about the downstream issues of preventative care screening for, say, breast cancer, for colon cancer, for other significant conditions? What about the other health care that's being delayed? And from both lack of resources and patient reductions in seeking care, how will our immunity protections and the standard of care address that in the future? So those are going to be evolving considerations that, unfortunately, are going to keep lawyers like me busy in the years to come.

Medical Economics: Many physicians are now using telehealth to treat their patients. Can you discuss if there's any unique malpractice risks as a result of telehealth or any considerations that physicians need to take into account?

Byrne: There are some really important considerations there. A lot of the medical malpractice insurance carriers who had very specific rules about telehealth have lessened those rules or adjusted them to accommodate the shift in delivery models and the prolific use of telehealth on such short notice during the pandemic. So it's a good idea for a provider or practice group to look and see what is your insurance carrier saying about that? And have they acknowledged that it's within the scope of your malpractice policy?

Similarly, state regulations that impose some requirements on how you can do telehealth and when you can do telehealth, many of those have been broadened, and some of the regulatory hurdles have been set to the side so that providers have easier access to telehealth. So both the legal environment for telehealth has changed. This pandemic has fast forwarded the thinking both from a business perspective and also from a regulatory and insurance perspective.

Medical Economics: Your previous answer when you were talking about downstream effects got me thinking about patients that may have serious health situations developing and aren't getting in-person care or, just because of the pandemic, there's these new barriers now to care. What, as a physician, should you be thinking about to proactively manage both pandemic risks and sort of these downstream risks that you mentioned?

Byrne: The advice we give, oftentimes, as medical liability defense attorneys is that your documentation can be your best friend, because if a claim or lawsuit develops a couple of years from now, and we have to prove what you were thinking, your analysis, your careful reaction and your adjustment to the limitations that were being imposed on you and your practice by COVID-19. Good documentation of that, in the chart, is helpful. So if patients who are receiving routine follow up or screening or maintenance care, and those appointments are being missed or discontinued or postponed, good documentation of your follow up efforts will be really helpful. Someplace I see people fall short is, you know, when they make phone calls to patients to follow up on abnormal lab results, or abnormal imaging studies or missed appointments, but they don't document those efforts, which makes it hard for me to prove you were doing it. Your documentation becomes really important to help you out in these uncertain times.

Medical Economics: In terms of your physician malpractice policy, in general, do we expect some policy situations to change going forward? Will there be new policy riders that physicians should think about purchasing? Or is there any ways that you should change your approach to coverage?

Byrne: Great question. There might be a couple things to think about, including when quarantine rules took effect. Everybody went into lockdown, businesses shut down, the courts shut down, too. And so the deadlines for filing lawsuits, which are usually matters of state law, where patient has a year or two years or five years to file a claim, and these are hard and fast deadlines, and oftentimes insurance policies follow alongside those deadlines in terms of the scope, and duration, of your coverage. As a result of COVID-19, those deadline have been extended in various states.

So in Virginia, for example, for three or four months, there wasn't really access to the courts. So the deadlines for filing lawsuits got extended for months at a time. So I think providers want to be thoughtful about that when they're looking at the business side and their insurance policies and claims if they're using different delivery models in terms of telehealth they're practicing in other locations, they want to make sure that those locations are accessible. If their policy talks about their scope of practice in a defined way, and they're now exceeding that scope of practice, they want to make sure that's covered. The insurance carriers that I've seen and worked with have been very responsive to try and figure out how to be there, as partners, for their health care providers.

Medical Economics: What kinds of things are you hearing from your physician clients? And how do you address their concerns?

Byrne: It varies widely by practice area, right? Our gastroenterologists, orthopedic surgeons, people that do elective procedures, we're sidelined and saw their patient volumes dramatically didn't decrease. Our dental practices were essentially closed for more than a month. So those folks have had to figure out how to get going, how to sustain themselves economically, and what things look like when they return. Urgent care, emergency medicine, most providers really have shifted their focus into testing, preventative measures, and being prepared for COVID-19. So it's affected each practice area a little differently. We get calls for risk management and compliance advice in all these areas. And people are thoughtful about when can I re-open. When the state governments imposed restrictions on elective procedures, there's debate about whether a particular procedure is elective or medically necessary now, and it probably depends on your perspective, whether it's you or your loved one, and it's your practice or someone else's practice. So we've had some debate about that. We've seen a few board of medicine complaints with unsatisfied patients saying, hey, my procedure was postponed as elective and it shouldn't have been, and I want to move forward. I think the boards of medicine won't have a lot of sympathy with patients who make those complaints when they know the providers are doing the best they can.

Medical Economics: Anything else that you think it's important for physicians to know that we haven't talked about?

Byrne: The really interesting thing to me is that, ultimately, malpractice cases come down to convincing the jury that you are reasonable. The cases where we clearly made a mistake, get settled. Cases that are frivolous nonsense, we fight to the to the death, the cases in the middle, come down to jury perception on your good name as a physician, working hard to do the best you could for the patient under the circumstances.

And so, in this era of health care heroes, it'll be interesting to see how juries respond to medical malpractice cases. A lot of plaintiff attorneys who are well regarded and very selective in their case, case management and decisions have said publicly, I don't want to take COVID-19 cases, when I understand the crunch that the providers are under. So whether the future brings more medical liability lawsuits raising out of COVID-19 or fewer, and how it affects jury perception, is a real unknown.

I think what providers can continue to do is focus on good charting, good relationships, staying up to speed on the developments, and hopefully they will stay in the medical facility and out of the courtroom.

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