- Proceed with Caution: COVID-19 Bumps Ahead - Tips to Help Lower your Risk
- Home Healthcare Patient & Employee Risks Bulletin
Proceed with Caution: COVID-19 Bumps Ahead – Tips to Help Lower your Risk
Author: Mary Stoll
It’s not uncommon for a physician to experience a lawsuit during their career. In fact, according to the Medscape Malpractice Report of 2019, more than 50% of physicians have been named in a lawsuit at some point.1 Fast forward to 2020 as the medical community battles the intense demands of the current pandemic. Physicians and their colleagues are wondering what liabilities they may face as a result of the COVID-19 crisis.
Questions like, “Can I be sued by a patient or staff member for contracting the virus during an office visit?” or, “What if restraints of the pandemic contributed to the delay of an elective procedure for my patients and a bad outcome resulted?” are lingering in physician’s minds. A medical malpractice claim is a possibility and taking steps to avoid liability is critical.
Elements of Liability
In order to reduce risk, it helps to understand what is necessary for a medical malpractice lawsuit to be successful. There are four elements of liability that must be proved for the plaintiff (patient) to recover damages:
- A professional duty is owed to the patient.
- Duty is breached: the provider fails to conform to the relevant standard of care.
- Damages: there must be physical or emotional loss to provide the basis for a claim.
- The breach caused the injury.
The plaintiff (patient) must prove that all of the four elements exist to prove negligence. The defendant (provider) must prove that one or more of the four elements does not exist. Risk can be reduced by controlling the first two elements of liability: duty to the patient and a breach of that duty. While offering the best possible care for your patients is your priority, other elements of liability may help you prevent or minimize risk to your patients and protect yourself.
Standard of Care
Dictates of the standard of care are changing due to the ever-evolving nature of the COVID-19 pandemic. Health care teams and other heroes are working intensely to provide safe care during these unprecedented times. Nonetheless, medical events will likely occur that will result in potential negligence claims. If some of the COVID-19 directives prevented elective procedures from being done, this delay could cause injury. For example, if a patient with a chronic condition avoided an in-person visit, did you address this risk? An expert would need to help define the standard if necessary, but with so many unknowns caused by COVID-19, it is hard to determine how these dictates will develop.
Steps you can take to help build up your defense:
1. Follow the guidelines from the Centers for Disease Control and Prevention (CDC). You are expected to follow and stay up-to-date with CDC guidelines and those of other governing authorities. It will be important to demonstrate your adherence. Show efforts that you are taking precautions seriously. Demonstrate timely response to your staff if they express concerns about COVID-19 infection control practices and keeping patients and staff safe. Their insight is invaluable and they can validate that you put forth best efforts to minimize risk.
2. Document your work. This is your most trusted legal defense weapon.
a. Keep it clear, concise and accurate so that your written account can help defend you when your memory cannot.
b. Clearly document circumstances. For instance, if you recommend that a patient postpone an elective colonoscopy due to pandemic constraints your documentation should clearly spell out your reasoning for procedure or treatments delays.
c. When you document, consider how this pandemic affected your care and treatment decisions. If you diverged from your customary practice because of the restrictions of COVID-19, it is recommended that your documentation spells out your thought processes.
d. Some attorneys opine that limitations will exist with some of the new immunities. These could be a helpful defense, but they are not a ‘get out of jail free card.’ They have limitations and may be litigated by plaintiff attorneys. Was your documentation substantive? Did it tell ‘the story’ of why you did what you did? Documentation where you note a patient’s suspected or confirmed COVID-19 condition and how you responded with care will help decide if any immunity will apply. Your good faith efforts will serve you well if they are documented.
3. Communicate with your patients. Having necessary conversations with patients about your precautions in place for infection control is crucial. Posting precautions in public areas is recommended.
a. Informed consent: These conversations should focus on measures in place to safely undergo the intended procedure, including any risks of becoming infected during the perioperative episode. Also, make sure they understand the worsening symptoms of their condition and how to contact the emergency department.
b. Communicate discharge information including quarantine instructions, and document that the patient acknowledges and understands these instructions.
c. When appropriate, make sure you are monitoring the status of any patients sent to the emergency department and those who needed to postpone procedures.
We hope that you will find these tips beneficial to help you navigate with cautious professionalism during these unusual times. Thank you for diligence in providing the best care you can for all.
Please contact your Gallagher account team if you have questions about this information or details about your policy. Visit The Doctors Company for more beneficial information on COVID-19 lessons.