Physician Medical Professional Liability and COVID-19: Then and Now

COVID-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 Liability and personal risk. Personal protective equipment (PPE) was suddenly needed...and unavailable. Many physicians whose COVID-19: 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 THEN NOW and 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. Some believe that Governor Ducey’s March 11 declaration of a “public health state of emergency” and his subsequent “Good Samaritan” Executive Order (1) 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,and medical resource allocation priorities. These defined care standards, however, may conflict with the statutorily defined standard of care that requires a physician to exercise “that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances” (A.R.S. §12-563:1).

Implicit in the requirement that a physician meet the standard of care is an awareness of the guidance and the recommendations provided by the literature, specialty societies, and local, national and international entities such as the Arizona Department of Health Services, the CDC and WHO. Information and recommendations by these entities have often conflicted and certainly have changed with each passing month as more is learned about COVID-19. If it comes to a claim or suit, it will be necessary to know what “expert guidance” was considered valid at the time care was rendered.

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.

Published studies clearly demonstrate the dramatic decline in immunizations, cancer screening, and cancer treatment during the pandemic. A recent study published in JAMA Network Open reported 46% weekly drop in diagnoses for six common cancers, and a 52% drop in breast cancer diagnosis alone. (3) Modeling predicts a 16% increase in colorectal cancer deaths and 5% increase in lung cancer deaths. Based on these and similar reports, many anticipate a surge in claims alleging delayed diagnosis and delayed treatment.

Not to be forgotten is the dramatic growth in telemedicine. It has enabled medical visits but has severely limited physical assessment and reduced personal interaction. It has allowed physicians to unknowingly practice in states where they are not licensed. But in-state or out-of-state, many have expressed concern that the rapid adoption and widespread use of telemedicine will result in allegations of missed or delayed diagnosis and delayed treatment. Moreover, telemedicine has been widely utilized but often without the careful attention to documentation requirements and the data integrity, privacy and confidentiality required by the Department of Health and Human Services (DHHS). (4) For the moment, the OCR (Office of Civil Rights) of DHHS has “exercised its discretion” in not enforcing DHHS’ requirements. Not to be forgotten are the risks of rapidly adopted and widespread use of digital communications: data theft and HIPPA violations.

Physicians, surgeons and advanced healthcare practitioners are likely to see a gradual return to the increasing trend in claim and suit frequency over the next few years. The question is, will there be a “bump up” in claims and suits as deferred claims are brought forward, ancillary claims are made for care provided or not provided during but not directly related to COVID-19, claims asserted for care provided or not provided to patients with COVID-19 or for failure to recognize complications related to as yet unrecognized long-term complications of COVID-19.

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.

By James F. Carland III, MD, Chairman and CEO, Mutual Insurance Company of Arizona (MICA), JCarland@mica-insurance.com

Cited Sources: (Numbered in parentheses above)

1. Executive Orders: 2020-07 dated March 11, 2020, 2020-27 dated April 9, 2020 and 2020-42 dated June 25, 2020 2. Activation: http://azpha.wildapricot.org/resources/sdmac-crisis-standards-activation.pdf Plan: https://www.azdhs.gov/documents/preparedness/emergency-preparedness/response-plans/azcsc-plan.pdf 3. https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2768946 4. https://www.hhs.gov/hipaa/for-professionals/faq/3020/when-does-the-notification-of-enforcement-discretion-regarding-covid-19-and remote-telehealth-communications-expire/index.html