A Greater Risk of Liability Due to COVID-19

Some key regulatory updates enacted during the pandemic

Stephanie Sheps, Vice President of Claims at Coverys–a leading provider of medical liability insurance. Stephanie is a seasoned medical liability and insurance industry professional, skilled in Insurance Operations, Professional Liability, Litigation Management, Analytics and Strategic Planning. She has a JD with a Concentration in Litigation and Dispute Resolution from Boston University School of Law, with dual majors of Political Science and French from Duke University.

Now Stephanie shares some of the key regulatory updates and potential liability risks facing physicians and hospital administrators due to the COVID-19 pandemic.

What are some of the emergency regulatory changes and updates that you're seeing that might most directly affect physician practices?

SS: Since the early days of the pandemic response, regulatory changes at the Federal, State, facility and individual provider level, have had a significant impact on the way providers conduct their business. Two notable regulations were: suspension of elective procedures in both inpatient and ambulatory care settings, and deferring routine checkups and diagnostic testing. Though such measures were necessary to protect both patients and providers, these radical changes in practice, may result in a greater risk of liability.

Has the regulatory landscape adapted to the proliferation of telehealth services since the pandemic began?

SS: There have been some federal regulations that allow telehealth to be used more broadly and expand the scope of practice in terms of venue. For example, the CARES Act lifted the requirement that a physician have a pre-existing relationship with a patient for telemedicine services to be reimbursable.

What are some of the new liabilities that physicians might be facing with these new telehealth services?

SS: The most obvious potential liabilities are the same as those that exist in a traditional in-person treatment setting, that is, failure or delay in diagnosis, as well as the risks posed by inadequate follow up, improper documentation of a patient encounter, or failure to refer the patient for more specialized care. Basically, a provider's inability to use all five senses to assess a patient creates a greater risk of a missed diagnosis in some medical disciplines. In addition to these risks, providers and facilities also face cyber security risks related to those interactions, as well as the failure to properly manage patients who may not have access to the technology required for telehealth. What are some of the steps that healthcare facilities and providers, as well as insurers and defense counsel, can take now to put themselves in a better position to defend these claims in the future?

SS: By the time COVID-19 and pandemic related cases come to resolution or trial, parties' (and jurors) memories may have faded as to how seismic the changes in healthcare delivery were at this time.

Contemporaneous documentation of key factors that impacted care delivery is critical. For example, facilities and providers should be keeping a detailed timeline of all significant milestones, including:

• The date of declaration of a state of emergency; • The date of the first case of COVID-19 at the facility; • Dates and details of when and how COVID-19 testing became available and how it was implemented; • Dates and details of staffing shortages, and/or reassignments; • Dates and details of shortages or rationing of PPE and/or ventilators; • Dates and details of any modifications to policies and procedures, related to patient care, visitation, etc.; and • Dates and details of various phases of re-opening.

Additionally, patients' charts should be documented with the fact that treatment is being rendered during a national and/ or local state of emergency. Providers may want to consider having patients sign an informed consent (or informed refusal) document that acknowledges that care is being rendered or refused during exigent circumstances, with potentially limited resources and without well-defined guidelines to prevent inherent risks. Facilities and providers should also document all infectious disease safety measures implemented and track your repository of information.

Insurers and defense counsel would be well-served by collaborating with health systems to identify strong COVID-19 critical care experts now and to keep a database of these subject matter experts who have a present-day and welldocumented understanding of the medical and healthcare delivery issues related to the pandemic.