Physician Medical Professional Liability and COVID-19:
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OVID-19 has had a profound impact on our social, economic and healthcare systems. Even before it was designated a pandemic, doctors, nurses and advanced healthcare professionals began actively treating highly infectious patients while trying to manage their own personal risk. Personal protective equipment (PPE) was suddenly needed...and unavailable. Many physicians whose specialty skills did not match the requirements needed to treat COVID-19 experienced a collapse in patient visits leading to layoffs and closed offices. Public service announcements emphasized social distancing, and medical practices encouraged patients to call but to stay home. Taking the cue, individuals avoided Emergency Departments, preventative medical screening and vaccinations. Telemedicine exploded as in-person healthcare faded. Overnight, medical care transitioned from the historical “laying on of hands” to the inevitable extension of social distancing, “history-based” diagnosis and treatment. Complicating the picture was the novelty of the SARS-CoV-2 virus and the conflicting, often contradictory information and recommendations provided by the CDC and the WHO regarding the basic pathophysiology of COVID-19, its prevention and its treatment. Guidelines were issued, withdrawn and countermanded in the space of a few days or weeks. It wasn’t just physician offices that shut down. So did the law courts. Courtrooms and jury rooms are quite small. Social distancing is extremely difficult. Trials stopped and few expect civil trials to resume before 2021. But many of the functions of the court remained open, including the ability to file a suit. The impact on physicians and advanced healthcare practitioners continues to evolve. Many suggest that physicians and other front-line practitioners will be protected from malpractice liability by the “halo” afforded to “heroes.” Others see that as transient at best. The immediate impact of the pandemic is fewer claims of malpractice; thirty percent fewer than one year ago. This is consistent with the decrease in patient encounters, fewer screenings and essentially no elective procedures. Suit filings declined, but not to the same extent, likely reflecting the time between an alleged incident, plaintiff counsel’s evaluation and preparation of a suit filing. Some believe that Governor Ducey’s March 11 declaration of a “public health state of emergency” and his subsequent “Good Samaritan” Executive Order1 provide partial immunity by declaring that physicians and other healthcare practitioners are “presumed to have acted in good faith and [are] immune from civil liability” unless their conduct is considered “gross negligence or reckless or willful misconduct”. It is unclear if this applies solely to COVID-19 related care or to medical or surgical care provided (or not provided) for other illnesses during the COVID-19 pandemic emergency. Many predict the constitutionality of the declaration will be challenged. In late June, the Arizona Department of Health Services activated the “Arizona Crisis Standards of Care Plan,”2 a plan that provides guidance for triage, expanded scope of practice,
THEN and NOW
