Physician Liability During COVID-19: What You Need to Know To Protect Your Practice

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MEDICAL ECONOMICS

The coronavirus disease 2019 (COVID-19) pandemic has brought a lot of unknowns into the practice of medicine. Doctors are trying to see patients while keeping their patients, themselves, and their staff safe from infection and balancing the threat of being sued for not taking the proper precautions. Stephanie Sheps, vice president of claims at Coverys Specialty Insurance Company, a medical liability insurance provider, shared her thoughts on liability risk in the age of COVID-19 in an interview with Medical Economics^R.

What are some new liability threats?

There are the obvious risks, including transmission of COVID-19, both to patients and to staff. It is a novel issue because we do not fully understand this virus yet, and 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 stems from pandemic-related or contextual realms. Pandemic risks are those that do not involve the diagnosis, transmission, or treatment of COVID-19, but are instead related to the changes in how health care is being delivered or not delivered. These risks include the denial of services to patients because of lack of capacity and lack of personal protective equipment (PPE).

Medical visits, especially for checkups and management of chronic conditions, that are deferred or held virtually present some risk. There is 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. When that is limited by doing visits through telehealth, I think that could present some greater risk in the future.

Are there oversights that make practices more vulnerable to COVID-related lawsuits?

Yes and no. These are common issues that would have existed before COVID-19, like the failure to document informed consent or informed refusal of treatment. Obviously, there are specific risks related to exposure in the office. The greatest risk right now, however, is that providers are so focused on these COVID-related safety issues that they may overlook traditional typical patient safety and risk mitigation efforts.

Have there been any cases that offer insight into how the courts will look at these COVID-19 issues?

It is a little bit early in the lifecycle to consider potential suits related to COVID-19. Not many have been filed related to COVID-19 that are not just contextual or pandemic-related, as it takes some time for things to wind their way through the court system. There was 1 decision in the federal district court in New York that remanded a case filed in the federal courts, but it was remanded back to the states so that it would not have the protections of the Public Readiness and Emergency Preparedness Act (PREP) Act.

Are there any states or regions where COVID-related actions are more prevalent than others?

Again, it is a little too soon to tell where things are more prevalent because not a lot has been filed in terms of COVID-specific lawsuits. We will likely see more case activity in states that do not have specific immunity for COVID-related countermeasures. Some of those are legislated, some of those are by executive order, but those states will probably see more activity. We will probably see more activity in states without tort reform, or states that do not have caps on noneconomic damages. Finally, states that have had limited or no specific guidance on public health and safety measures like wearing masks, by logical extension, may see more claims activity related to COVID-19 because those states are more likely to have more patients who contract COVID-19. Everything, just like the virus, continues to spread exponentially in the states that have passed legislation to help protect businesses from COVID-related lawsuits.

Do the state legislation protecting businesses from COVID-related suits help medical practices?

Absolutely, they do. The broadest protection comes from the federal extension of the PREP Act, which happened in March of this year. The PREP Act provides immunity to certain individuals, in this case, health care providers, for countermeasures taken to deal with health crises during. Many states have taken the initiative to invoke their own state-related liability protections, and some of those are even stronger, broader, and more encompassing to protect health care providers than the PREP Act itself. There are good protections out there for health care providers, but like anything else, there are ways around them.

What should practices do to minimize their risk from COVID-related legal action?

One of the things that we have been advocating is to continue traditional risk management and clinical risk management practices, and also employ tactical risk management. Those are things that we need to do now in anticipation of the claims we might have to defend 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, keep a very detailed timeline of everything that has transpired related to the pandemic. If cases come up, most will be heard by a jury 3 to 4 years from now. With any luck, this pandemic will be a distant memory by then, and juries will need real reminders of what things were like.

It is important to be proactive about keeping records. We want to memorialize them on a timeline. Note the date that the first COVID-19 case appeared in your practice, the date testing became available, and the dates of any declaration of a state of emergency in your jurisdiction. Note dates when PPE was limited. Any dates relating to staffing shortages, furloughs, or reallocations should also be listed. These dates are critical.

In terms of record keeping, make sure that you have documentation, including the purchase orders, letters from suppliers, etc. It is also important to have records of patient logs, like when they had visitors, when they left, or dates when the visitation may have been limited or flatly refused.

Document staff training, along with any furloughs and leaves of absence for providers who were concerned about the disease. Maintain a floor plan noting how isolation works for patients that are COVID-19 positive or suspected COVID-19 positive. Also, keep evidence of any reviews of quality assurance or compliance. These tasks contribute to preserving memory.

Memorialize the subject matter experts within your facility, including human resources and office manager personnel. If a deposition is later needed during litigation , you do not want to have to think back to who was working in 2020; you want to have that recorded. If possible, have a video of a day in the life at your facility or practice. It is so important, since memories fade, to get a context and to have a living example of how you functioned during this pandemic to illustrate for a jury what it was like to deliver health care during a pandemic.

Remember, the strategy behind tactical risk management is that it is never too late to start. It will be more difficult to gather documents in the future. It will benefit the defense to have all of this information in 1 place, starting with your timeline; then connecting to all of your records and documentation; and finally preserving the memories of the actual people who are in charge of those decisions, creating the protocols, and following state federal guidelines with respect to the pandemic.

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

Typically, yes, a medical professional liability policy covers what we call professional services, which is insurance company lingo for rendering medical care. However, most policies exclude willful or intentional conduct and many also exclude gross negligence.

Ms Sheps is the vice president of claims at Coverys. She is also a member of the International Association of Defense Counsel, the Professional Liability Underwriters Society, and serves as vice chairperson of the Professional Liability Foundation of Massachusetts.❒