A shortage of acute care doctors and nurses to care for patients suffering from COVID-19 has forced many medical professionals to assume new roles and responsibilities. They are working long hours treating an unprecedented volume of gravely ill patients, often in unfamiliar settings and with insufficient personal protective gear. Many are forced to make life-and-death decisions due to shortages of available beds and equipment.
Consequently, concern over a potential surge in malpractice lawsuits is intense; professionals and organizations like the American Medical Association (AMA) are lobbying government to safeguard providers on the front lines of the pandemic against unreasonable suits. Many providers are wondering whether their Medical Malpractice Insurance policies will help mitigate their risks.
“Right now is a very traumatic time for everyone,” said Dana Kocen, Broker, Burns & Wilcox, Chicago, Illinois. “Providers are stressed beyond their limits and lack the equipment they need to treat patients or protect themselves. They are making decisions they feel are best for patients, based on circumstances in a particular hospital at a particular moment in time.”
Given the rising cost of malpractice claims and the high probability of being sued — more than a third of American physicians have been sued for malpractice — the current crisis could expose physicians and health care facilities to an unparalleled level of liability risk.
“These providers are making treatment decisions on the front lines, and to have the threat of malpractice looming over every decision they make would be detrimental to the entire process,” said Michael Fasanella, Senior Director, Professional Liability, Burns & Wilcox, Philadelphia, Pennsylvania.
Coronavirus crisis may lead to influx of claims
While medical teams engage in the herculean effort to treat victims of COVID-19, potential malpractice claims may be a secondary but still pressing source of unease. A recent MDLinx survey found nearly 37 percent of physicians are moderately or very concerned about medical malpractice, and multiple emergency room physicians recently expressed concerns about liability related to COVID-19 patient care.
Primary care doctors switching their practices to telemedicine visits also face uncharted territory, especially when screening patients who may have the coronavirus.
“Physicians are being encouraged to engage in telemedicine in lieu of traditional face-to-face visits to limit the spread of COVID-19. I think that can have potential liability implications for providers who are not prepared or used to practicing in this manner,” Fasanella said. “The same standard of care applies to telehealth and face-to-face visits.”
In many cases, health care workers have no say in whether they are transferred to work in other facilities or outside of their specialty. Some employees who refuse a transfer to work with COVID-19 patients will lose their job. Add potential unemployment to challenges with COVID-19 testing and critical equipment shortages, and “the end result is anxious, stressed and burned-out staff who are worried about their own safety,” said Fasanella.
“I think the physical and emotional toll is huge,” he said. “While you are rendering care in an emergency situation, you should not have to be worrying about whether you will be sued. That could affect your decisions and level of care.”
The annual cost of medical malpractice in the U.S. is estimated at nearly $60 billion, making Medical Malpractice Insurance a necessity for individual physicians and Medical Liability Insurance critical for health care facilities and systems. Although medical malpractice lawsuits awards are generally typically lower in Canada than in the U.S., liability is a concern for health care workers everywhere during the current global crisis.
“I can envision a huge influx of malpractice claims coming up,” Kocen said. “This crisis is going to have a major financial impact on everyone — hospitals, doctors, insurance carriers and patients.”
There will likely be a wide range of lawsuits, Fasanella said, from malpractice cases involving individual providers to cases related to how facilities managed quarantine issues, protective gear and overall preparedness.
“I think you are going to see a much higher level of individuals being held responsible and questions being asked.”
Legislation, insurance protect providers on the front lines
Action is being taken on the federal and state levels to offer legal immunity to health care workers responding to the COVID-19 emergency. In New York, New Jersey and Michigan, governors have issued executive orders raising the standard for injuries or death from “negligence” to “gross negligence” while physicians respond to the pandemic.
According to the American Medical Association, a variety of liability protections have been put in place so far to cover health care professionals on the frontlines of the crisis. This includes H.R. 748, the Coronavirus Aid, Relief and Economic Security (CARES) Act, which contains Good Samaritan language providing temporary federal liability protections to volunteer health care workers during the COVID-19 emergency response.
Signed into federal law on March 27, the CARES Act clarifies that physicians and others 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 apply for gross negligence, criminal misconduct and providing care while intoxicated, the AMA noted.
“It is hard to say whether these actions will be enough to protect care providers. I can only hope it will be,” Fasanella said. “The plaintiffs’ bar and defense attorneys are watching this carefully.”
Medical Malpractice Insurance policies typically cover the provider within their specialty, however, carriers at this time are making exceptions for providers that are providing care outside of their specialty.
Carriers are relaxing their guidelines for providers to practice out of state if they are currently not licensed in that state during the COVID-19 pandemic. In addition, doctors who are coming out of retirement to volunteer and provide care are extending their coverage.
Health care workers such as nurses or respiratory therapists—who are usually covered under a private practice’s or hospital’s Medical Liability Insurance policy—recruited to help at a new venue should inquire whether they are covered under its insurance policy before they begin work.
Physicians coming out of retirement to respond to the COVID-19 crisis should verify whether they should seek protection in the form of a temporary Medical Malpractice Insurance policy.
“They are coming out of retirement and putting their lives at stake, as well as opening themselves up to liability,” Fasanella said. He advises such physicians to consult their insurance broker or agent about any special liability coverage policies that will cover them for volunteer work provided during COVID-19.
During this time of crisis, Medical Malpractice Insurance carriers “are doing everything they can to relax their guidelines to make sure everyone is going to be covered appropriately,” Kocen said.
“What I have been hearing from our carriers and our underwriters is that they are making exceptions and making sure there is coverage to protect their insured,” she said. “That is what our Medical Malpractice Insurance policies are designed to do: protect health care workers.”
How health care workers can help protect themselves
Protecting yourself from liability as a health care provider may be especially trying amid the current tumultuous conditions at many hospitals. However, the importance of documentation cannot be underestimated, Kocen emphasized. “Make sure you document everything in your patient notes,” she said.
Fasanella agreed. “In an emergency, physicians should exercise their best judgment and take the actions they deem necessary to treat their patients. Documentation is critical when a physician is acting under the duress of a patient emergency.”
Providers should also maintain licensing requirements, which are changing and being waived during the current crisis. In addition, providers should seek advice in determining whether the level of Medical Malpractice Insurance they carry is appropriate for the region they may have transferred to in response to the pandemic. In metropolitan areas with a higher cost of living, for example, physicians may need a policy with higher limits.
Working with an insurance broker or agent who is well-versed in the health care industry ensures the appropriate coverage for providing care during the COVID-19 crisis.
“Someone who is working in this space constantly knows the questions to ask, what coverages to look for and what exclusions may not be appropriate and can be negotiated. They will also have better relationships with Medical Malpractice Insurance carriers,” Fasanella said. “Especially at times like this, there may be a need for a tailored approach that will only come from working with someone who specializes in this field and a carrier that specializes in this area.”
The impact of COVID-19 on medical and professional liability is ever-evolving, he added. “There are attorneys on both sides keeping an eye on these legal developments, and I think it is imperative that insurance and medical professionals are informed and ready to mitigate these exposures.”
Kocen pointed to industries and individuals working together at a time of crisis. “There are difficult times,” she said, “but everyone is trying to work together to solve the problem at large.”