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Physician liability during COVID

Medical Economics JournalMedical Economics December 2020
Volume 97
Issue 16

What you need to know to protect your practice.

The COVID-19 pandemic has brought a lot of unknowns into the practice of medicine. Doctors are already dealing with diagnosing and treating people affected by the deadly virus while trying to keep themselves and their staffs safe from infection. But with the threat of infection also comes the threat of being sued for not taking the proper precautions against it. Medical Economics spoke with Stephanie Sheps, vice president of claims, Coverys, a medical liability insurance provider, to discuss liability risk in the age of COVID.

(Editor’s note: The following transcript has been edited for clarity and brevity.)

Medical Economics: What new liability threats have emerged from COVID-19?

Stephanie Sheps: First, there are the obvious risks that include transmission of COVID, both to patients and to staff. It's a novel issue because we're not fully understanding this virus yet, so things continue to evolve daily. Based on patient and provider awareness and precautionary measures taken to mitigate these risks, I believe that the greater liability actually stems from pandemic-related or contextual realms. And so, pandemic risks are those that do not involve the diagnosis or treatment of COVID-19, or the transmission of it, but are related to the changes in how healthcare is currently being delivered or not delivered. These risks include the denial of services to patients because of lack of capacity, or the availability of PPE, and provider and facilities that delay elective surgeries because of capacity issues, etc. Another significant area of risks stem from the fact that many providers have and continue to defer their primary care visits, their annual checkups of patients, routine screenings like mammograms and colonoscopies, things that we do to manage chronic conditions. And the fact that those are being deferred or if they're being held, are being held virtually, does present some risk. I mean, there's a reason we see our providers in person, they get to put eyes on the patient, they get to take labs, they get to really assess the patient using all of their senses. And so when that is being limited by doing these types of visits through telehealth, I think that could present some greater risk in the future. And just one final note is that on the patient side, many people are making the choice to delay or defer treatment, because they're fearful of going into the doctor's office or a hospital, or they're trying to be a good citizen and think their issue isn't that serious. [They say] other people need the facilities more, I will just hang back. And because they make those decisions, sometimes, we've seen increased risks of heart attacks and strokes that are having greater morbidity and mortality, because people are waiting it out at home. You've even seen some cases of delayed setting of fractures, because people just thought I'll wait this out, it's not that bad. And the longer they wait to deal with those issues, the more morbidity there could be.

Medical Economics: Is following CDC guidelines, as far as safety goes, enough to protect the practice from lawsuits?

Sheps: Well, I think it's a good starting place, and of course, would advise everybody to continue to follow those guidelines, but it's not the panacea to prevent claims and suits. In essence, the standard of care is going to come from the region, the whatever the law is the common law, the statutory law in that jurisdiction, that will define the standard of care. Now we're functioning under what we like to think of as a crisis standard of care right now, but only time will tell how things are perceived and adjudicated in the courts. So it’s always a good idea to follow the CDC guidelines. But unfortunately, I can't say that it will be totally preventative of claims.

Medical Economics: Are there common mistakes or oversights that make practices more vulnerable to COVID-related lawsuits?

Sheps: I would say yes and no. And the reason I equivocate there is that these are common issues that would have existed before COVID. So the failure to document informed consent or informed refusal of treatment, those are risks that exist, no matter what. Obviously, there are these specific risks that patients will get the disease or transmit the disease to your staff while they're there. But I think to me, the greatest risk right now is that providers are so focused on making sure that they are safe that their patients are safe, and their other staff members are safe from contracting COVID, that they may overlook traditional typical patient safety and risk mitigation efforts.

Medical Economics: Have there been any court cases that offer any insight into how the courts will look at these COVID issues?

Sheps: We are not yet really there, as it is a little bit early in the lifecycle of what are potential suits or suits related to COVID. Not many have been filed yet that are very specific to COVID and that aren't just contextual or pandemic-related. But it takes some time for things to wind their way through the court system. There was one decision in the federal district court in New York, that actually remanded a case that was filed in the federal courts extensively, to bring certain allegations that were federal in nature, but it was remanded back to the states so that it wouldn't have the protections of the PREP Act.

Medical Economics: Is there a particular type of practice that might be more vulnerable than another?

Sheps: So the obvious answer to that question is long-term care facilities are obviously at heightened risk because they contain a very vulnerable patient population. And there have been numerous incidents and cases of COVID and COVID mortalities in those settings. It’s really any place where patients are in inpatient care, so that could be behavioral health facilities, hospitals, any of those locations have greater risk, because of the density of patients and just the multitude of staff and interactions that the patients are having.

Medical Economics: Is there any state or region where COVID-related actions are more prevalent than another?

Sheps: So it's a little too soon to tell where things are more prevalent, because as I said, not a lot has been filed in terms of COVID-specific lawsuits. But I suspect that we will see more case activity in states that don't have specific immunity for COVID-related countermeasures. So some of those are legislated, some of those are by executive order, but those states will probably see more activity. Also we’ll probably see more activity in states without tort reform, that is states that do not have caps on non-economic damages. And finally, I believe that states that have had limited or no specific guidance on public health and safety measures like wearing masks, I think just by logical extension, those states may see more claims activity related to COVID, because those states are more likely to have more patients who contract COVID. And everything, just like the virus, continues to spread exponentially in

the states that have passed legislation that helps protect businesses from COVID-related lawsuits.

Medical Economics: The states that have passed legislation that helps protect businesses from COVID-related lawsuits—do these laws help medical practices as well?

Sheps: Absolutely, they do. And the one that provides the broadest protection is the federal extension of the PREP Act, which happened back in March of this year. And what the PREP Act does is it provides immunity to certain individuals, in this case, medical or health care providers, for countermeasures taken to deal with health crises during this period of time. Many states have taken the initiative to invoke their own state-related liability protections and some of those are even stronger and broader and more encompassing, to protect health care providers, than the PREP Act itself. So there really are good protections out there for health care providers. But like anything else, there are ways around them.

Medical Economics: What do practices need to do to minimize their risk from COVID-related legal action?

Sheps: So one of the things that we have been advocating quite a bit is to first of all, not forget about our traditional risk management and clinical risk management practices, but also to employ tactical risk management. Those are things that we need to do today in the anticipation that we will have to defend claims in the future. For tactical risk management, we bucket our recommendations into timeline, record keeping, and memory. We recommend that health care providers, their practices, as well as facilities, that they keep a very detailed timeline of everything that has transpired related to the pandemic. And the reason we recommend this is that most of these cases should they exist, will be heard by a jury three to four years from now. And if we are lucky, as a society, this will be a distant memory, but people won't have that eye, they won't have the impulse and the ideas when they're sitting in a jury, to remember what this time was like in our history. We need to be proactive about keeping these records. We want to memorialize on a timeline, the date, there's a long list of dates, but the date that the first case of COVID was diagnosed at your facility or in your practice, the date testing became available, the dates of any declaration of a state of emergency in your jurisdiction.

We want to know the dates where maybe PPE was limited, or there were issues with ventilators, if we didn't have enough ventilators, for patients in the inpatient setting. Any dates relating to staffing shortages, furloughs, or reallocations, a lot of staff in the hospital or long-term care setting are having to figure out new parts of their facility, new jobs within the facility to maintain the patient population and their employment. All of these dates are critical to being able to set the stage and not have to go back three to four years from now to figure out and put the pieces together of what has transpired.

In terms of record keeping, it's very important that we have all of the documents that are related to some of those dates on the timeline. So that could be documents related to when we ordered PPE and that PPE was not available. Make sure that we've got pure documentation, including the purchase orders, or letters from suppliers saying, we don't have masks available for the next six months, whatever those things may be, where your supplies were diverted, or anything that backs up the situation that has been occurring while you're trying to deliver patient care. It's also important to have records of patient logs in terms of when they had visitors and when they left, or dates when the visitation may have been limited or flatly refused during that period of time.

Any meetings regarding staffing or documents that give us a record of training and orientation of staff if they work allocated within the facility are very helpful documentation, along with any furloughs and leaves of absence for providers who were concerned about contracting the disease are very important. Another thing that we recommend is maintaining a floor plan for how isolation is going to take place or did take place for patients that were COVID positive or suspected COVID positive, evidence of any in-service training for your staff, related specifically to the virus from this period of time. And any evidence of reviews of quality assurance or compliance would be a very helpful thing to maintain in terms of your record documentation. All of these things contribute to preserving memory. But then we also want to memorialize the people who really are your subject matter experts within your facility, about everything related to this crisis. So keep a record today of who was working in your HR department, and who is going to be your person with the most knowledge. If a deposition is taken during litigation later on, we want to not have to think back to who was working in 2020, we want to have that recorded. And that person may want to keep notes of what it was like to work during that period of time. And one final recommendation that we've made is, if possible, to have a video of the day in the life of your facility or your practice during this period of time. I think it is so important as memories fade, to get a context and to have a living example of how we functioned during this pandemic. Because hopefully, it will be but a distant memory a few years from now. And it will be important to be able to bring a jury back to this period in time and to really illustrate what it was like to deliver health care during a pandemic.

Medical Economics: It sounds like if a practice or facility has not done these steps, it would behoove them to start to go back now and compile all these documents, rather than waiting until a legal action occurs.

Sheps: Absolutely, that is the whole strategy behind the tactical risk management is that it's not too late to start today. Just pull all of this together and trust me, but you will think thank me for the recommendation. It will be so much harder to put this together in the future. And it will benefit the defense of any cases so greatly to have all of this information in one place, starting with your timeline, then connecting that to all of your records and documentation that support that timeline, and then finally preserving the memories of the actual people who are in charge of those decisions, and of creating the protocols and following state federal guidelines with respect to the pandemic.

Medical Economics: Does the typical malpractice insurance policy cover COVID-related claims?

Sheps: It's a little bit of a tricky question. Typically, yes, a medical professional liability policy covers what we call professional services, which is insurance company lingo for rendering medical care, essentially. So the policy would cover that. The exceptions come from the fact that most policies exclude willful or intentional conduct and many also exclude gross negligence. And unfortunately, because of the exceptions to most state immunities and federal immunity under the PREP Act, those exceptions are for willful misconduct or gross negligence, resulting in patient injury. The plaintiff's attorneys are pleading the cases with those allegations to get around the immunity and the policy may not cover. Because of that, most carriers are going to look at things very fact specifically and look at it very critically with the allegation. And if there is an item of medical negligence that has been alleged, they will almost always defend the provider or facility under a reservation of rights, which essentially says, if this proves to be medical negligence and it is not been stopped by the immunity laws, we will cover this. If this truly becomes gross negligence or willful misconduct, then we will not be able to indemnify. So that's hopefully a helpful answer to many about how these policies apply. What we're going to do, though, is our very best to when we do defend a provider or facility for one of these allegations is to get it dismissed as soon as possible, so it is just not something lingering over you or something that we have to worry about indemnifying in the future.

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