COVID-19: Malpractice Risks When Treating Patients

Debra A. Shute

April 29, 2020

Editor's note: Find the latest COVID-19 news and guidance in Medscape's Coronavirus Resource Center.

As if the COVID-19 crisis isn't terrible enough, there are some attorneys who are willing to make it worse for physicians.

At least one national plaintiff attorney malpractice firm has been advising the public to be on the lookout for certain types of medical negligence that could occur during this crisis and that might be grounds for making a claim:

  • Alleged failures of hospitals to prepare for and respond appropriately and timely to coronavirus patients;

  • The negligent failure of hospitals and other healthcare providers to timely diagnose the coronavirus in patients;

  • The negligent failure to take appropriate precautions to prevent or limit the exposure to and spread of coronavirus among patients not infected;

  • The negligent failure to timely and appropriately treat coronavirus patients; and

  • Negligent failures that result in the delay of unrelated treatments and procedures that cause harm to patients.

Does this mean that physicians and hospitals that are already putting themselves at risk to treat COVID-19 patients are in greater danger of being sued? According to Reza Torkzadeh, Esq, CEO and managing attorney of a personal injury firm in Los Angeles, these types of claims are not out of the question.

"Maybe some creative lawyers will come up with ways to describe willful misconduct in certain ways," he said. For example, many patients who test positive for COVID-19 but who are not ill enough to be hospitalized are being told to self-quarantine and recover at home.

"If a doctor says, 'Go home and wait it out,' I could potentially see some exposure if that individual goes home and does pass away," Torkzadeh said. Similarly, with shortages of hospital beds and staff throughout the country, hospitals may be accused of negligence, he added.

"Naturally, anytime a family member loses a loved one, they're going to be looking for negligence — that something fell below the standard of care — but I think it's going to be a stretch," he said. "If you read the text of the [emergency declaration] by the Department of Health and Human Services (HHS), it [indicates] it's going to be very difficult for lawyers and plaintiffs to really prosecute these cases successfully," said Torkzadeh.

Although the possibility of being sued by a patient (or a patient's relative) you risked so much to treat may be the farthest thing from your mind, is this something you should be concerned about?

Physicians Should Put Risk Into Perspective

Despite existing and newly created liability protections for medical providers on the front lines of fighting the pandemic, physicians should not consider themselves immune to litigation arising from the crisis, according to Gita Pensa, MD, an emergency medicine specialist and associate professor and clinician educator with the Brown University Emergency Medicine Residency in Providence, Rhode Island.

"I don't think that it should be first and foremost in anyone's mind, but you should take reasonable steps to protect yourself," said Pensa. Drawing in part on her own 12-year ordeal with being sued, Pensa also hosts a podcast that informs physicians about the legal, financial, and emotional intricacies of malpractice litigation.

"I will say that later, when lawsuits are filed, I can only imagine the psychological impact that it will have on providers who are literally risking their lives to help other people," said Pensa. "Physicians right now are trying to cope with much larger stressors than worrying about litigation.

"Physicians are worried about keeping safe, about dying themselves," said Pensa. "They are worried about saving these hordes of patients who are coming, with limited resources. They're worried about denying people ventilators. They're worried about these issues that are larger than life."

Pensa has denounced some personal injury lawyers' advertisements specific to COVID-19. "To have a plaintiffs' attorney preying off of this [crisis] is just unimaginable," she said. "But I don't think we should be naive and think there will not be litigation."

What Are Doctors' Legal Protections During the Pandemic?

In late February, HHS issued a declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) that broadly protects those who provide medical treatment for COVID-19.

"HHS recognized early on [the need] to extend this liability protection and immunity," said Torkzadeh. "These are the heroes who are on the front line, trying to prevent further spread and save lives. So there is a pretty wide-ranging, blanket declaration that gives physicians and others who are trying to fight COVID-19 immunity and protection."

Torkzadeh and Pensa agreed that it could be very difficult for plaintiffs to challenge this immunity and that attorneys would accept only the strongest cases of willful misconduct. "Plaintiffs' attorneys will be very choosy in thinking about those cases," said Pensa. She added, "Experienced lawyers will know that there's a very high bar."

However, there are limitations to what the declaration covers, noted Mollie Gelburd, JD, associate director of government affairs for the Medical Group Management Association. "This declaration of immunity relates to certain countermeasures, and those do have a limited scope," she said. In other words, if the care does not relate to administering antiviral or other drugs, as well as vaccines or other diagnostics that are used to treat, diagnose, cure, prevent, or mitigate COVID-19, it's not covered.

Additionally, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed by President Trump on March 27, offers temporary liability protection to volunteer physicians and healthcare professionals. Although it may sound broad, this protection applies only to volunteers who perform tasks related COVID-19 countermeasures.

There are other limitations of the CARES Act. "The protections will apply [only] if the services being furnished are within the scope of the provider's license," said Gelburd. This detail is relevant because many physicians are being asked to perform services outside the scope of their licenses, owing to shortages.

A number of state governors have enacted similar protections for healthcare workers in their jurisdictions. The National Governors Association's website is tracking state declarations and other COVID-19 responses.

Additionally, the American Medical Association (AMA) is maintaining a list of federal and state liability protections that are in effect or underway. The AMA notes that such laws typically include exceptions for gross negligence or reckless or intentional misconduct.

Make Sure You Have Appropriate Liability Coverage

Regardless of COVID-19-related legislation, it's essential for all clinicians to ensure they have appropriate malpractice liability insurance. Physicians in special circumstances, such as those coming out of retirement to aid in the crisis, operating outside the scope of their license, or using telemedicine for the first time, should be especially proactive in confirming their coverage, Pensa said.

"The plaintiffs may not win these cases if they are filed, but the physician would still have to mount a defense, and that costs money," she said. "It could cost five figures just to have a lawyer defend it to the point where it gets to a judge to immediately get thrown out."

Pensa recommends that physicians take the time to ask the healthcare organizations they're working for as well as their malpractice insurers, if applicable. "It doesn't take long," she added. "Just doublecheck: Will there be someone to defend me? Will you pay for the cost of my defense?" And it's useful to make sure this information is in writing.

Not surprisingly, malpractice insurers are fielding plenty of questions and concerns. For example, The Doctor's Company, a physician-owned malpractice insurance company based in Napa, California, reported a 59% increase in overall call volume during March, according to Mindy Rogers, the company's vice president of underwriting operations. What's more, clients' calls to the insurer's patient safety risk managers are up 30%, she added.

"The advent of the COVID-19 pandemic over the past several weeks has exponentially multiplied the demands on the delivery of healthcare services and has seriously complicated the daily practice of medicine across the country," said Richard Cahill, JD, vice president and associate general counsel with The Doctors Company. "As a frontline resource for the medical community, our patient safety and risk management department has experienced first hand the dramatic evolution and is addressing novel questions and concerns relating to the pandemic in rapidly escalating volume."

In response to these questions, The Doctors Company has posted a list of frequently asked questions about issues such as telemedicine coverage, coverage for practice outside of one's specialty, and COVID-19 patient claims.

Guidance on the latter is somewhat hesitant: "Generally, our policy protects the practice of medicine and subject to its terms and conditions; if a patient asserts a claim against our member involving COVID-19, we would anticipate that claim to be covered. However, because insurance coverage is determined by the specific facts of a claim, we are unable to provide answers regarding insurance coverage until a claim is actually made against a member and reported to The Doctors Company."

Cahill added, "Often, the guidance depends upon the swiftly changing landscape of federal and state legislation, regulations, executive orders, medical board directives, and recommendations by governmental agencies and professional societies."

Make Sure You Document COVID-19 Care and Treatment

One important piece of advice to physicians and clinicians is to document care as scrupulously as ever — even in states that have issued executive orders that have eased record keeping requirements for healthcare workers during the pandemic.

For example, New York's executive order reads as follows: "Notwithstanding any law or regulation to the contrary, healthcare providers are relieved of recordkeeping requirements to the extent necessary for healthcare providers to perform tasks as may be necessary to respond to the COVID-19 outbreak, including, but not limited to, requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes."

However, the benefits of strong documentation outweigh the relief afforded by such provisions, according to experts.

"No matter how busy you are as a doctor, don't skip and don't rush through accurate documentation of whatever actions that you've taken or recommended to patients," Torkzadeh said. "Now more than ever before, documentation is important, not just for protecting doctors but protecting patients and promoting research. We need data right now," he said.

Just because one authority implements flexibility does not mean that you can apply that flexibility across the board, said Gelburd. "It's not like you exist in a vacuum in one state or just bill Medicare. You have a patchwork of different rules and policies that apply," she said, echoing the opinion that it's preferable to err on the side of caution.

Manage Your Mindset

As someone who has firsthand experience with litigation as well as fighting COVID-19 on the front lines, Pensa gave this advice: "Litigation is basically an occupational hazard in medicine, and it very well may come out of this. Your job is to do your very best, take care of the patient, and protect yourself in the ways that you can — making sure your documentation choices are reasonable and that you are protected by an insurer who will uphold that obligation when it's time."

Debra A. Shute is a freelance writer in Worcester, Massachusetts.

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