By: Michael G. Erena
Our nation’s health care providers have resoundingly answered the call for extraordinary responses to the extraordinary demands of COVID-19 public health crisis. Many providers show up to work to meet the unique demands of COVID-19 patients, but for others, the pandemic radically altered normal practices through deferral of certain treatments and procedures, replacement of office visits with telehealth conferences, or even re-location to a different geographic region or practice area to address workforce issues in the frontline defense against the virus. The significant questions as to what the short- and long-term impact of this singular crisis will be on the health care industry and its providers loom on the horizon, and it is critical for those in the industry to begin anticipating the unique challenges that await in the “new” normal of the pandemic’s aftermath.
Will health care providers be immune from future claims of ordinary medical negligence related to treatment of COVID-19 patients?
Most likely, yes.
The specific answer to this question will vary by the individual provider’s jurisdiction as medical negligence is largely a creature of state law, however, many states, including Kentucky1, have already taken legislative action to provide health care providers an explicit immunity defense from ordinary negligence claims specifically arising from treatment of COVID-19 patients. The American Medical Association recently issued an open letter to the National Governors Association imploring other states to follow suit and enact similar legislation to allow our medical care professionals to attack this pandemic unencumbered by the threat of litigation for judgment calls made during the crisis.2 It is anticipated that additional states will heed the AMA’s advice and adopt such immunity provisions going forward. But, even if a practitioner finds himself or herself facing potential suit for treatment of a COVID-19 patient in a state which ultimately failed to adopt a specific COVID-19 immunity provision, there will be robust persuasive authority available from the aforementioned states that such a provider should nonetheless be immune. Furthermore, the federal CARES Act provides immunity to “volunteer” health care providers for the provision of health care services during the COVID-19 public health crisis.3 A very strong argument can and should be made that a medical provider whose regular practice would encompass treatment of a patient presenting with COVID-19 should likewise be afforded the same immunity as a volunteer worker under the CARES Act, even in the absence of a state-specific COVID-19 immunity provision.
Will health care providers be immune from future claims of gross negligence related to treatment of COVID-19 patients?
Most likely, no; however, risk exposure on such claims is likely minimal for the average, conscientious practitioner treating COVID-19 patients.
Even in states where there is explicit immunity for health care providers from claims of ordinary negligence in treating COVID-19 patients, there is typically an exception carved-out for potential liability of a provider acting grossly negligent (i.e. exceptionally bad) even under the unique circumstances of the pandemic. In theory, this may give pause to providers rendering care for COVID-19 patients, however, in practice, this should be nothing more than an existential threat. A health care provider that exercised reasonable judgment under normal (pre-pandemic) circumstances should trust his or her instincts to do so under the extraordinary circumstances of the pandemic without fear for any liability under the more onerous standard required to establish gross negligence.
Will health care providers be immune from future claims of ordinary medical negligence or gross negligence related to treatment of non-COVID-19 patients that arose during the pandemic?
Most likely, no.
Again, this is a state-specific inquiry, but even in the states that have thus far adopted specific COVID-19 immunity provisions for health care providers, such immunity is narrowly tailored to claimed injuries that specifically result from treatment of COVID-19 patients.4 None go so far as to grant blanket immunity for health care providers for any and all ordinary negligence claim that might arise during the pandemic state of emergency. As in pre-pandemic “normal” circumstances, health care providers treating non-COVID-19 patients during the pandemic may be exposed to civil liability for ordinary negligence claims. However, it should be noted that the COVID-19 pandemic is a generational public health crisis that very well may provide contextual mitigating circumstances in the defense of such a claim. Should such a claim arise, providers and their counsel should not unnecessarily exploit the crisis, however, the defense should be sure to carefully highlight the nuanced ways that the COVID-19 pandemic may have impacted the standard of care under the specific circumstances presented, even for those patients and providers who were not amid the frontline of the pandemic.
What can health care providers be doing right now to minimize future risks of liability for claims of ordinary medical negligence or gross negligence in treating non-COVID-19 patients during the pandemic?
Of course, as health care providers are aware there is no “magic bullet” to prevent a malpractice lawsuit—under normal circumstances or during the current pandemic. At a general level, the same best practices and due diligence a health care provider employed pre-pandemic should be implemented when dealing with non-COVID-19 patients during the pandemic, but under neither circumstance can the risk of suit be eliminated. Further, the guidance below is no substitute for a health care professional’s own sound decision-making but may provide a starting point for proactive risk assessment and mitigation in these extraordinary times (particularly for private practitioners who may lack specific institutional guidance on such issues).
Maintain robust lines of communication with all patients: Everyone is looking for answers regarding the current health crisis. Patients are no different. In fact, the present circumstances may prompt many patients to become hyper-aware of their current health issues or the threat of future disease unrelated to COVID-19. Even if a given health care provider’s specific area of expertise and training is far removed from epidemiology, he or she has vastly more knowledge of the present circumstances than the average patient and can direct those patients to quality resources where they can obtain reliable information. To the extent open lines of communication can be maintained, for example, via telemedicine, health care providers can not only provide patients with care and support during this challenging time but also garner goodwill that might preempt later contemplation of suit by their patients.
Document deferred elective treatments and procedures: Health care providers are strongly encouraged to specifically document that a given treatment or procedure is being deferred due to social distancing protocols resulting from the COVID-19 pandemic. In so doing, any facility-wide policies or government actions that warrant the deferral should be specifically mentioned. Providing patients with information may completely alleviate any future concern about not having proceeded immediately with an elective treatment or procedure. Further, should a later suit be contemplated, the patient and provider would both have strong evidence justifying that provider’s decision to defer a treatment or procedure—particularly so if the potential suit would allege the worsening or development of a condition due to deferred action.
Document emergent or urgent elective procedures: Many practitioners will be presented with difficult judgment calls as to whether a procedure can or should be deferred given facility-wide policies or government actions calling for deferral of certain elective procedures. In Kentucky, for example, a health care provider may proceed with an elective procedure only if the provider deems it “emergent” or “urgent.”5 Should a patient be dissatisfied with the result of an elective procedure performed an “emergent” or “urgent” basis during the pandemic that patient may as part of an ordinary negligence suit also claim that the surgery should not have been performed under the circumstances. Health care providers undertaking such procedures must carefully weigh the risk of performing such procedures and should consider specifically documenting what is in fact “emergent” or “urgent” about each patient before proceeding with such elective procedures.
1 KY LEGIS 73 (2020), 2020 Kentucky Laws Ch. 73 (SB 150)(available at https://apps.legislature.ky.gov/recorddocuments/bill/20RS/sb150/bill.pdf); See also,
https://www.courier-journal.com/story/news/politics/2020/03/26/coronavirus-kentucky-state-legislature-passes-covid-19-relief-bill/2920358001/
4 See e.g., https://apps.legislature.ky.gov/recorddocuments/bill/20RS/sb150/bill.pdf;
5 KY LEGIS 73 (2020), 2020 Kentucky Laws Ch. 73 (SB 150)(available at https://apps.legislature.ky.gov/recorddocuments/bill/20RS/sb150/bill.pdf);