Jackson Kelly PLLC

Health Law Monitor

Considerations for Physicians Asked to Practice Outside Their Normal Scope of Practice

April 13, 2020

By: Laurie K. Miller

To alleviate pressure on healthcare systems and hospitals caused by the Coronavirus outbreak, physicians may be asked – or may volunteer – to work outside their usual scope of practice and/or in unfamiliar surroundings to treat patients. Before a physician agrees to work outside his/her normal scope of practice to care for Coronavirus patients, several considerations are important. These include reviewing clinical privileges, hospital guidelines, insurance policies, and applicable state and federal laws.

Consult Applicable Delineation of Clinical Privileges

A physician should consult his/her list of delineated clinical privileges from his/her hospital(s) if considering working outside of his/her normal scope of practice. Some types of care may already be included in the provider’s existing credentials. For example, an anesthesiologist who is asked to work on a critical care floor maybe called upon to perform intubations for Coronavirus patients needing ventilators, but intubations are likely already on the anesthesiologist’s delineation of privileges. 

If there may be procedures or treatments that the physician could be called upon to perform that are not within the delineation of clinical privileges, the physician should review the hospital’s Credentialing Policy and/or Medical Staff Bylaws, which often have provisions that speak to expanded credentials of physicians in an emergency situation. For example, there may be a provision that allows any member of the medical staff to provide any treatment permitted by the provider’s license regardless of department status or specific grant of clinical privilege where a delay in treatment may otherwise result in harm to a patient.

Disaster privileges are typically granted by the hospital CEO, the President of the Medical Staff or possibly the Board of Directors of the hospital and should be evaluated for additional credentialing provisions. Typically, disaster privileges may be implicated if the hospital has instituted its emergency management plan. In these circumstances, in addition to expanded privileges for existing medical staff, the hospital may be permitted to grant disaster privileges to additional providers outside of the existing medical and/or nursing staff. These providers may be paid or may be volunteer. Disaster privileges (similar to emergency privileges) may include authorizations for providers to take whatever steps they reasonably believe are necessary to save or preserve the life or health of a patient or to otherwise protect the public health.

Healthcare providers should consult these kinds of internal hospital resources and seek direction from the hospital on what provisions of the bylaws or credentials policies may apply before changing or possibly exceeding their normal scope of practice. It is also advisable to have the expanded credentials documented in the provider’s credentialing file, if possible. 

Consult Professional Liability Policies

Even if a hospital approves a physician’s expanded scope of practice, a provider’s professional liability policy may not.1  The provider should consult his/her insurance policy concerning available coverages and scope of practice. For example, many insurance policies required the insured to notify the carrier if there is a change in the insured’s scope of practice or the professional services provided by the physician. If the physician moves his/her practice to a new professional group or becomes hospital employed, the insured may also be required to notify his/her carrier. Failure to advise a carrier about these kinds of changes may result in a carrier declining coverage. The provider should also carefully review the definition of “licensed” in his/her professional liability policy because these policies typically do not cover professional services for which the insured isn’t “licensed.”  This applies more frequently to nurses and advanced practice providers rather than physicians but should still be considered.

Immunity Statutes and other Actions Protecting Providers

Right now, physicians are most concerned with treating Coronavirus patients, but before the Coronavirus outbreak, nearly 37% of surveyed physicians were either moderately or very concerned about malpractice claims.2  Now, in an era where physicians are being asked to expand their scope of practice both in hospitals and through avenues like telemedicine, those concerns are heightened. To protect healthcare providers from claims in these unprecedented times, several states and the federal government have taken action.

  1. State Actions

Governors in several states have issued Executive Orders either essentially providing immunity to healthcare providers during this pandemic or changing the legal standard for medical malpractice claims.  In some states, Executive Orders changed the legal standard from negligence to gross negligence or willful misconduct.3  Alabama issued an Executive Order describing “alternative standards of care” that may be implemented where healthcare facilities have invoked their emergency operation plans in response to the Coronavirus pandemic.4  Some states enacted Uniform laws which include liability protection for volunteers who respond in a declared emergency.  The Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), grants immunity of civil liability to out-of-state licensed health professionals for gratuitous care provided in a declared emergency. According to the National Conference of Commissioners on Uniform State Laws, 17 states, D.C. and U.S. Virgin Islands enacted the UEVHPA.5  This protection may be broader than “Good Samaritan” laws in some states.  All 50 states have “Good Samaritan” laws which provide immunity to physicians assisting patients at the scene of an accident, for example.  

  1.  Federal Actions

The federal government passed the Coronavirus Aid, Relief and Economic Security (CARES) Act6  which provides, in part, that volunteer (not receiving compensation) physicians and other healthcare providers will not be liable for providing services related to the assessment, diagnosis, prevention or treatment of patients with actual or suspected cases of COVID-19. Exceptions do apply for gross negligence, criminal misconduct and providing care while intoxicated.  This only applies to claims made on or before the passage of the Act on March 27, 2020.  This Act does not preempt state laws that may offer greater liability protections.

The Public Readiness and Emergency Preparedness Act (PREP Act)7  provides immunity protections to healthcare providers who administer or use Coronavirus “countermeasures” covered by declarations of the Secretary of Health and Human Services.  On March 17, 2020, the Secretary issued a declaration providing immunity under the PREP Act for “Covered Persons” against “any claim of loss cause by, arising out of, relating to or resulting from the manufacture, distribution, administration or use of medical countermeasures (Covered Countermeasures) except for claims involving “willful misconduct.”  “Covered Persons” include those who administer, prescribe or use “Covered Countermeasures” and includes licensed health professional or other individuals authorized to prescribe, administer or dispense “Covered Countermeasures.”  A “Covered Countermeasure” must be a “qualified pandemic or epidemic product” or “a drug, biological product or device authorized for emergency use” in accordance with the Federal Drug & Cosmetics Act.  A qualified pandemic or epidemic product means a drug or device…that is 

(i) manufactured, used, designed, developed, modified, licensed or procured to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic or limit the harm such a pandemic or epidemic might otherwise cause; (ii) manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life- threatening disease or condition caused by such a drug, biological product, or device; (iii) or a product or technology intended to enhance the use or effect of such a drug, biological product, or device.8 

Typically, such countermeasures would include administration or use of things like antiviral medications, biologics, vaccines, diagnostics and/or devices (including Coronavirus testing and respiratory therapy) to treat, diagnose, cure, prevent or mitigate the spread of Coronavirus.9 

Conclusion

Before a provider offers or provides services outside the normal scope of his/her practice during the Coronavirus pandemic, careful consideration should be given to being certain such actions are permissible from a licensing10 and credentialing stand point as well as ensuring that the provider is covered by either a professional liability policy and/or can seek immunity or an alternative standard of care under applicable law.  Healthcare providers must take steps to protect themselves so they can continue to provide care and protect others.

 

1  If the hospital operates under a self-insured plan, it is likely that expanded privileges may already be covered, but it is still advisable for the physician to be certain they are covered.

2  See Top Physician Concerns Beyond COVID-19, John Murphy https://www.mdlinx.com/internal-medicine/article/6627 (last visited April 10, 2020).

3  New York: https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency (last visited April 10, 2020); New Jersey: http://d31hzlhk6di2h5.cloudfront.net/20200401/11/eb/64/eb/316b0f5aebd90f0226cc1175/EO-112__Corrected_Copy_.pdf  (last visited April 10, 2020); Michigan: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481--,00.html (last visited April 10, 2020); and Illinois https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx (last visited April 10, 2020).

4  See https://governor.alabama.gov/assets/2020/03/2020-03-13-Initial-COVID-19-SOE.pdf (last visited April 10, 2020).

5  See https://www.uniformlaws.org/committees/community-home?CommunityKey=565933ce-965f-4d3c-9c90-b00246f30f2d (last visited April 10, 2020).  States enacting this uniform law include AR, CO, GA, IL, IN, KY, LA, ME, NV, NM, ND, OK, TN, TX, UT, WA, WV.

6  See https://www.congress.gov/bill/116th-congress/house-bill/748/text?q=%7B%22search%22%3A%5B%22hr748%22%5D%7D&r=1&s=1 (last visited April 10, 2020).

7  See https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx (last visited April 10, 2020).

8  https://www.govinfo.gov/content/pkg/FR-2020-03-17/pdf/2020-05484.pdf (last visited April 10, 2020).

9  See https://www.ama-assn.org/practice-management/sustainability/liability-protections-health-care-professionals-during-covid-19 (last visited April 10, 2020).

10  It is also advisable to check with the state medical (or nursing) licensing boards to ensure there are no specific local requirements that must be met before expanding a provider’s scope of practice.

 

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