Minimizing the risk of medical malpractice liability related to COVID-19 public health emergency
Legally Speaking
Robert M. Portman, JD, MPP, is a health care attorney with Powers Pyles Sutter & Verville, in Washington, DC, and serves as legal counsel for the AAD and AADA.
By Megan La Suer, JD, MHA, and Rob Portman, JD, MPP, August 1, 2020
Every month, Dermatology World covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.
This article was published early, on June 12, to provide readers with important COVID-19-related information. Please note that legal considerations around the COVID-19 pandemic are rapidly developing. This article necessarily reflects the legal scenario at the time of its publication.
As the number of COVID-19 cases begins to decline, many states have started to lift stay-at-home orders and have allowed businesses and communities to reopen. With this, many health care facilities and offices, including dermatology practices, are reopening or extending services to include non-emergent, elective services for the first time since the beginning of the pandemic. Although some areas of the country have seen a leveling off in the number of cases, the COVID-19 pandemic and the threat of infection still exist. The COVID-19 public health emergency has introduced new issues regarding malpractice liability risks and employer responsibilities. This article provides an overview of the legal and operational issues that dermatologists should consider when reopening to help protect patients, employees, and themselves.
Malpractice liability risk
In general, malpractice liability depends on whether a health care professional was negligent in treating a patient. Medical negligence is determined by applying the general standard of care that a reasonable physician would or would not provide under the same or similar circumstances. This is an objective test and in most states is typically established through expert testimony. The COVID-19 public health emergency, however, presents new issues as to what the appropriate standard of care is and how states will apply the “reasonableness” test to the provision of care and the steps taken to prevent the spread of COVID-19.
As dermatologists open their practices and begin seeing more patients in the office, they need to be cognizant of the potential for spreading the virus. The federal government and several states have enacted certain temporary legal immunities for providers treating COVID-19 patients. However, these immunities do not extend to health care providers that are not directly treating COVID-19 patients, thereby opening the door to potential liability for certain dermatology practices if a patient alleges that they contracted COVID-19 while in the office or during the course of treatment for a non-COVID-19-related illness. In order to minimize potential liability, dermatology practices should ensure that they have the proper policies and procedures in place to prevent COVID-19 infection or address a potential infection. It is also important that patients are properly informed of and consent to the COVID-19-related risks of receiving non-emergent medical care before they come into the office.
COVID-19 risk management policies and procedures
Prior to opening, dermatology practices should draft and implement policies and procedures that address the extra precautions that need to be taken to prevent the spread of COVID-19 and otherwise mitigate liability risk for the practice. Employees should be required to review and acknowledge that they have seen and will comply with these policies to ensure the practice’s plans are consistently implemented. Additionally, practices should implement additional informed consent procedures and documentation to reflect the risks of COVID-19 spread. Any discussion with the patient or additional documentation should supplement the general informed consent policy that the practice already has in place.
When drafting COVID-19 specific policies and procedures and informed consent documentation, dermatology practices should consider taking the following steps:
Screen patients for symptoms of COVID-19 (including temperature checks), recent international travel history, and knowledge of potential exposure events.
Ensure patients have enough room to socially distance when possible, require them to wear a mask while in the office, limit the number of individuals that a patient can bring to the office with them, and continue to use teledermatology when available.
Discuss the potential risk of becoming infected with COVID-19 during the appointment process and during treatment and obtain an additional consent from patients that they understand and accept the risks of contracting COVID-19 during an office visit.
Obtaining an acknowledgement from the patient that the practice may reschedule a patient’s appointment for elective care if the patient is exhibiting symptoms of COVID-19, recently traveled abroad, or was subject to a known exposure event.
Ensure the practice has an established plan for thorough cleaning and disinfection in between each patient visit.
Routinely scan employees for symptoms of COVID-19 (including temperature checks) and, if symptomatic, require the employee to be tested and quarantined.
Ensure that employees wear appropriate personal protective equipment at all times while engaging with patients.
Notify patients of the practice’s policies with respect to COVID-19 and the safeguards in place to minimize infection prior to their office visit.
Many states also require health care professionals to provide specific information related to COVID-19 to patients. Therefore, dermatologists should consult with their state or local health department to ensure they are providing the correct consent information to patients. Dermatologists should also consult with their malpractice insurance carrier to see if they require a specific informed consent form.
This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.
