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:

  1. A professional duty is owed to the patient.
  2. Duty is breached: the provider fails to conform to the relevant standard of care. 
  3. Damages: there must be physical or emotional loss to provide the basis for a claim.
  4. 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. 

Quotes to provide a dose of serenity

"Wherever the art of Medicine is loved, there is also a love of Humanity.
― Hippocrates

I remind my fellows, residents and medical students that what we do is a privilege. People let us into the most intimate aspects of their lives, and they look to us to help guide them through very complex and delicate situations.”
― Shikha Jain, MD via KevinMD

"Observation, Reason, Human Understanding, Courage; these make the physician."
― Martin H. Fischer (1879 -1962)

Home Healthcare Patient & Employee Risks Bulletin

Author: Gallagher National Risk Control 

As hospital and aging services facilities have decreased the amount of patients throughout the wake of COVID-19 the home healthcare space has continued to see growth and risks faced with both patient safety and employee safety. 

Employee safety for the home healthcare industry is quite unique. Employees face risks from un-controlled working conditions such as the home itself, occupational health hazards as we’ve seen in the wake of COVID-19, and poor administrative and training controls. According to the Bureau of Labor Statistics, the home healthcare industry is one of the fastest growing in the healthcare sector. It is estimated growth in this space will be over 60% over the next ten years. To be prepared for this tremendous influx, here are some tips to navigate both patient and employee safety.2

Uncontrolled Working Conditions in Healthcare

The first area within the home healthcare space we see the most exposure is the uncontrolled working conditions of most patient’s homes. Homes might not be prepared for both the patient’s medical needs, and the needs of the nurse or staff to conduct their work properly. It is recommended that home healthcare team members conduct either a virtual or onsite survey of the patient’s home to navigate any exposures prior to handling the patient’s medical needs. For example, navigating areas where the employee will have to move the patient or get around equipment and medical tools to the patient, any areas where there are stairs or trip related hazards, navigating any exposures such as the condition of the home (mold, lead paint, poor ventilation, poor lighting). Not only will you be able to make recommendations for the employee to stay safe, but the well-being of the patient will also increase. Employee and patient safety increases with pre-checks of working conditions. Also, regular weekly/monthly updates on the exposures within the home are recommended. 

With just these small additions to pre-inspections, home healthcare teams will see the employee become more pro-active to the exposures, but the patient also stays healthier and is given the utmost care needed without the complications of poor household conditions. 

Occupational Health Illness 

Next, we have seen less home visits and more virtual visits due to the potential of COVID-19 within the last 8 months. However, now with most states re-opening, an influx of home aides have been able to make their more routine visits. Home healthcare is especially exposed to occupational health illnesses, such as COVID-19 when visiting patients. While navigating occupational health exposures there are a number of ways to reduce the potential of an employee and patient becoming ill. 

First, provide both employees and patients with a virtual pre-screening. Have they been exposed to anyone that may have COVID-19, have they been exposed to any large gatherings, and do they have a temperature over 100 degrees? Even with re-opening, pre-screening should still continue to be conducted on a regular basis with both staff and patients. 

Second, has the household had proper cleaning and disinfecting care? This can go back to our first discussion on pre-inspecting households prior to visits. Households can be provided with best practices for proper cleaning protocols prior to visits. For example, areas to consider include: 

  • Make sure medical equipment is easily able to be disposed of
  • Equipment and tools are properly cleaned
  • Linens and sheets are properly disinfected

Third, reviews of personal protective equipment protocol should be conducted.  With the additional COVID-19 exposure, more personal protective equipment must be worn to protect the employee and patient from infection. Supplies should continue to be reviewed and monitored well into 2021, and protocol of cleaning and disinfecting PPE should be regularly managed as employees have the potential to visit multiple patients per day. For additional tools, please feel free to ask a Gallagher National Risk Control member about our third party vendors and partnerships with Grainger and other suppliers for more information. 

Last, but not least, if staff is not being closely monitored or trained regularly, claims will still happen.  Proper administrative controls and training frequently is the key to home healthcare industry success.  According to “Advances in Patient Safety: New Directions and Alternative Approaches (Vol. 1: Assessment)”, only 53% of home healthcare aides said they only received one or two safety related trainings within a year, 36% said three or more, and 6% received none.3 Training should be conducted at least once a month for positive results. Continuous effort and monitoring of employee and patient safety and health provides aides the ability to approach exposures and hazards more proactively instead of reacting when an incident occurs. 

Areas to help home healthcare organizations improve their training 

  • Review recent claims history with your Gallagher Risk Control team and carrier counterparts
  • Advise Risk Control on topics they might have available for free and provided by the broker and/or carrier resources
  • Utilize virtual pre-recordings, learning management systems, WebEx tools and other new technology to reach more of your staff on a regular basis

In the wake of COVID, training and outreach is even more possible for remote workers. Organizations who have actively engaged their employees have seen fewer claims and a lower cost on insurance, less turnover, and even positive results within their patients. 

Even with the world changing, the home healthcare space will continue to keep growing and continue to have its many risks and challenges. While you continue to navigate your organizations current exposures, please reach out to Gallagher Risk Control to help you create a plan for success. 

Author Information:


1 Medscape Malpractice Report 2019
2 U.S. Bureau of Labor Statistics. “Occupational Outlook Handbook: Healthcare Occupations.” 
3 National Center for Biotechnology Information. “Advances in Patient Safety: New Directions and Alternative Approaches (Vol.1: Assessment.” Aug. 2008. 


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