COVID-19 brings new malpractice risks

Malpractice liability is one of those issues that keeps many physicians awake at night, particularly this past year. Dealing with the effects of the COVID-19 pandemic — and the resulting increase in the virtual and remote care they’re conducting — made it an especially challenge time. Making matters worse, COVID-19 cases are spiking across the country in the middle of flu season.

So how can physicians ensure they’re doing everything possible to minimize their liability?

Medical Economics® sat down with David Feldman, M.D., chief medical officer of The Doctors Company Group, the nation’s largest physician-owned medical malpractice insurer, to discuss strategies for physicians to protect themselves from liability while treating patients during this unprecedented crisis.

The transcript was edited for length and clarity.

Medical Economics® (ME): What are some of liability issues surrounding this pandemic? Are we actually seeing malpractice cases resulting from COVID-19 yet? Or is it still too early in the process for that?

Feldman: We are too early. There have been a handful, a very small number. But we know malpractice is always lagging behind other things. We know that if you’re looking for malpractice as a leading indicator, you’re looking at the wrong thing. It takes years for these things to happen. So right now it’s a little too early to tell.

ME: What are some of the liability risks from COVID-19? What should physicians watch out for?

Feldman: The real answer is misdiagnosis. That’s the one thing we want to be careful about right now. Adding to that, clinicians are stressed, patients are anxious and testing is difficult. All of that just makes it even harder for clinicians to be sure they’re making the right diagnosis.

People are afraid to go to a doctor’s office. So we’re doing virtual visits, which I believe is a great thing. But they’ve got their issues. There have been very few malpractice cases around virtual visits in the past because (physicians didn’t do that many of them). But for the cases we’ve had, a lot of them have been around misdiagnosis.

So misdiagnosis is the one thing we really want to be careful of during this time. One of the resources we have on our end is on our website. If you read our recent article about the flu versus coronavirus, you’ll see this talk about the concept of system thinking. And this is certainly not my idea. It’s way above my cognitive abilities. But the idea is that, as human beings, we think with two different systems. There’s one system that’s sort of our automatic thinking — which I used to commute to Brooklyn every day from New Jersey when I was working at a hospital there. And if you had asked me when I got home how my drive was, I’m not sure I could have even told you, right? Because I was working on system one.

System two is the more cognitive way that our brains work. And if you think about when seeing patients, you want to be careful not to use system one too often, right? Patients come in with something, and you go right to what you think it is. And then you think, “Well, wait a second. Let me take a step back and think because it may actually be something else.”

And that’s a really interesting way of thinking about how we treat patients during this time, with all these other things happening at the same time that can really impede our ability.

ME: What practical steps should physicians do to protect themselves from liability?

Feldman: I oversimplify things by using what I call the three Ps. The first P is preventing adverse events. Patients have diseases. Doctors treat them. Can you make sure that things don’t go wrong? We can’t always do that. We know that in the overall world of patient safety, probably half the things that go wrong can be prevented, and we keep getting better at it. Certain things that we put in place allow us to prevent bad things from happening. But we know we can’t prevent all adverse events.

The second P is: Can we preclude a malpractice case even in the face of an adverse event? The good news about malpractice, if there is such a thing, is that it’s pretty rare. Even when there are adverse events, it’s not typical to have a lawsuit. And most of us believe the way we can avoid a lawsuit, even in the face of an adverse event, is with communication — how we communicate with patients both before and after an adverse event happens.

I used to have a mentor who once said: “When you talk to patients about complications before a procedure, that’s informed consent. When you talk to them about complications afterward, it’s called an excuse.” So there needs to be this continuum of doctors talking to patients and families at the beginning of treatment, during treatment and after treatment. And that’s just a great way to avoid malpractice, even when things go wrong.

And the final P is about prevailing in a lawsuit, and that is about documentation.

So think about the three Ps — prevent adverse events, preclude by improving communication and prevail by improving documentation — in the context of the coronavirus pandemic. How do we protect our patients from adverse events? We’re talking about having the right (personal protective equipment), taking the usual precautions so there isn’t an adverse event and treating them properly. That’s the most important thing. But also we talk about communication and informing patients of risks, right? Talking to them about the things that we hear about all the time: wearing masks, washing your hands, watching your distance with other people. Those are the things that are going to keep people safe before vaccination.

Now we’re starting to talk about vaccinations. It’s very exciting. And I certainly tell the patient to get a flu vaccine. That’s important too. ... And then talk to patients and families about prevention of other illnesses and make sure they’re getting their routine screening, which is really a concern to a lot of people. Mammography, (prostate-specific antigen) testing — all the things that we normally do that we didn’t do for a long period of time, we need to get back to doing those things to make sure we don’t suffer from other illnesses besides COVID-19.

And then it’s documentation. I don’t have to tell your audience about how documenting is critical. I have lawyers tell me that no one reads a patient’s chart when nothing bad happens. Only when there’s a lawsuit do people get really concerned. So especially when patients have problems, when there are issues, you really want to pay attention to what you’re writing in the chart to make sure you’re (including) all the things you did to show that you did everything in the best interest of the patient.

ME: In regard to those important screening tests, how should a physician protect themselves if a patient has not been screened? How should that be handled if this sort of gap in potential care occurs?

Feldman: It’s just writing down in your chart what the communication has been with your patients to let them know they really need to come in and get their preventive testing done. That you’ve called patients to follow up with them, that your office staff has been in touch with them. It’s really documenting everything. You want to be able to look in the chart and see that you did all the right things.