New malpractice risks to watch for post-COVID-19

It remains to be seen how the COVID-19 pandemic will affect medical liability, as so many aspects of health care are changing rapidly as a result of this world-shaking event. But there are steps physicians can take to protect themselves from new risks. Medical Economics® sat down recently with Sean P. Byrne, J.D., a medical malpractice defense lawyer in Richmond, Virginia, to talk through these strategies and learn how physicians can protect themselves from being sued in this new normal.

This transcript of the interview was edited for length and clarity.

Medical Economics®: How has COVID-19, has affected medical malpractice liability?

Byrne: The diversion of health care resources into treating the pandemic has affected us in the medical liability world significantly. ... In medical liability cases, the test is always: Did you comply with the standard of care? 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. 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 health care 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 [personal protective equipment], it can mean staffing, it can mean [intensive care unit] beds.

A number of states have also stated, “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 a hospital to another to fight waves of pandemic patients, state laws have given some protection in those cases.

The big issue 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.

ME: 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-19-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.

ME: We’ve received 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?

Byrne: It’s typically not that simple. I mean, most states have a public policy principle that says, “We ought not let people waive negligence.” [For instance], 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.

ME: Many physicians are now using telehealth to treat their patients. Are there any unique malpractice risks as a result
of telehealth or 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 loosened 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. It’s a good idea for a provider or practice group to see what your insurance carrier is 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. This pandemic has fast forwarded the thinking both from a business perspective and also from a regulatory and insurance perspective.

ME: What should physicians be thinking about to proactively manage both pandemic risks and 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. If a claim or lawsuit develops a couple of years from now, 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. If patients 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. Some place 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.

ME: Do we expect some policy situations to change going forward? Will there be new policy riders? Are 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, oftentimes insurance policies follow alongside those deadlines in terms of the scope and duration of your coverage. As a result of COVID-19, those deadlines have been extended in various states.

ME: What kinds of things are you hearing from your physician clients?

Byrne: It varies widely by practice area. We get calls for risk management and compliance advice in all these areas. And people are thoughtful about when can I reopen. 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.