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November Edition 2020

Inside This Issue

COVID-19 Is Changing Liability Risks and Litigation in Healthcare By Bill Fleming, Chief Operating Officer The Doctors Company

Filling the Continuum of Care Gap In The COVID-19 Era See pg. 12

INDEX Legal Matters....................... pg.3 Mental Health...................... pg.6 Oncology Research......... pg.8 Healthy Heart....................... pg.9

Across the spectrum of care, healthcare delivery is changing as the COVID-19 pandemic continues, creating additional pressures to maintain patient safety and shaping new liability risks for hospitals, group practices, and solo physicians.


nderstanding how these new risk exposures are unfolding— and how adverse events may be litigated in a courtroom environment also under strain—is the first step to taking protective measures. Mr. Fleming offers his expert insights: • What kinds of lawsuits do you expect to see linked to the COVID-19 pandemic? • Extraordinary circumstances and a steady stream of directives (and revisions thereto) from state and local governments have pressed physicians, practices, and hospitals to practice medicine in ways they never have before—or to not practice medicine, when certain elective forms of care have been suspended by government action, often to conserve PPE and other resources. In spite of reasonable efforts under difficult conditions, it’s likely that some adverse events will be traced to this time. It is important to note that

“elective” in this context does not mean unnecessary or optional. It includes important screening and diagnostic procedures such as colonoscopies, some cancer and cardiac surgeries, and most dental procedures. Delay of elective procedures may be a source of increased

Delay of elective procedures may be a source of increased litigation.

Age Well LiveWell See pg. 13

litigation—many biopsies for cancer, for instance, have lately been delayed, and delay in diagnosis was already one of the most expensive areas of litigation pre-COVID19. Other delays in care many be linked to access issues. Telemedicine has been a lifesaver for many during this crisis, but some vulnerable patients may lack access. Infrastructure can also present a barrier to telemedicine care, as some do not have sufficient internet bandwidth for video visits. Moreover, circumstances have forced physicians to use telemedicine in ways they usually might not. Telemedicine is ideally an adjunct to in-person care, and therefore not the best option for a first visit with a new patient, but during peak infection risk,

exceptions had to be made. Among our infrequent telemedicine claims pre-COVID-19, misdiagnosis of cancer was the top allegation, and I can’t imagine that risk of misdiagnosis has decreased, given the spike in telemedicine usage under nonoptimal conditions. Also, I anticipate that some COVID-19-related cases will focus on shortages of personal protective equipment (PPE)—those claims may come from patients or employees. • As you’ve said, providers are delivering care differently during COVID-19. How do these changes diminish or increase risks? • In the crush of managing a public health crisis, many hospitals and practices have had to take temporary measures that impact patient safety: Some of these measures mitigate certain risks but may amplify others. Healthcare providers in hard-hit areas are working longer hours, sometimes with insufficient PPE, sometimes in large tents put up in parking lots or other overflow sites. In surge locations, staff from other departments may be covering in the emergency department (ED) or intensive care unit (ICU)—this is could increase the risk of communication gaps. All of these resource-stretching measures, taken together, may add up to a risk profile that is more than the sum see Liability Risks... page 14


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Austin Medical Times

Legal Matters DOJ Creates National Rapid Response Strike Force as Focus on Health Care Fraud Continues to Grow

By Brian T. Rafferty, JD Brea M. Croteau, JD Polsinelli, PC


s COVID-19 continues to ravage the United States, the Department of Justice (DOJ) has recently announced its new National Rapid Response Strike Force within the Health Care Fraud Unit to investigate and prosecute fraud cases involving major health care providers that operate in multiple jurisdictions. The newly created Strike Force will focus on the investigation and prosecution of individuals and corporations, and cases like the large-scale rural hospitals billing fraud matter indicted in the Middle District of Florida and the global resolution with

Tenet Healthcare Corporation and related individual prosecutions will be within the purview of the Strike Force. Those cases involve a range of alleged violations of federal statutes, including healthcare fraud, conspiracy, and the Anti-Kickback Statute. The Strike Force relies on data analytics to target fraudulent activities, as opposed to the traditional reliance on whistleblowers and qui tam actions in the health care arena. Additionally, the Strike Force is based in Washington, D.C., with experienced investigators and prosecutors enabling the Strike Force to act quickly and take the burden away from local U.S. Attorneys’ offices that are inundated with complaints of COVID-related fraud. The Strike Force will also handle the prosecutions of those seeking to criminally exploit the COVID-19 pandemic through health care fraud and related financial fraud schemes. The Strike Force will handle criminal cases like the case recently brought against a North Carolina man who

fraudulently sought over $6 million in Paycheck Protection Program (PPP) loans for several entities. His PPP loan applications were supported by false statements about the companies’ employees and payroll expenses, and fake documents, including falsified tax filings. Charges, in that case, included wire fraud, bank fraud, and engaging in unlawful monetary transactions. The case was investigated by the U.S. Treasury Inspector General for Tax Administration, the FDIC Office of Inspector General (OIG), and the FBI, with the assistance of the Small Business Administration OIG. This is not the only example of a criminal case swiftly investigated and indicted in recent months specifically targeting those trying to exploit PPP loans and other COVID-related relief programs. In Texas, a woman was charged after receiving more than $1.9 million in PPP loans on behalf of two entities that neither had employees nor paid wages consistent with the amounts claimed in the loan

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applications. A National Football League player in Florida was indicted for his participation in a conspiracy to obtain more than $24 million in PPP loans, using more than $104,000 of the proceeds from the fraudulent loans to purchase luxury goods from Dior, Gucci, and jewelers. Two brothers in New York were charged with wire fraud conspiracy after submitting at least eight fraudulent loan applications in an attempt to obtain nearly $7 million in PPP loans. These examples are an indication of the explosion of criminal prosecutions related to the disbursement of COVID relief funds see Legal Matters...page 14

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Heart Hospital of Austin Launches New Program for Advanced Heart Failure Patients


eart Hospital of Austin announced today the launch of its Advanced Heart Failure Program, a mechanical circulatory support program that provides device therapies to treat patients who suffer from advanced heart failure. The program features two key therapies—extracorporeal membrane oxygenation (ECMO) and left ventricular assist device (LVAD). ECMO is a temporary therapy designed to assist the function of the heart, the lungs or both. The LVAD is a durable, long-term support device that mechanically pumps blood from the heart to the rest of the body. “We are committed to providing leading edge treatment options for our patients,” David Laird, chief executive officer of Heart Hospital of Austin, said. “With the addition of

the Advanced Heart Failure Program, we have broadened therapy options available to those living with advanced heart failure.” More than half a million Americans are currently living with advanced heart failure, many of whom need, but are not eligible for, a heart transplant due to underlying medical

a nt icip at i n g a heart transplant, the technology can also provide an extended and improved quality of life to patients who are not able to receive a transplant. “ T h i s particular LVAD can serve as a bridge to transplant—or as a long-term therapy for patients with advanced heart failure,” Jerome Thomas, M.D., medical director of the Advanced Heart Failure Program, said. “Patients can live an active, full life with an LVAD.” The HeartMate 3 device is a technological advancement in LVAD technology that has improved blood flow to help minimize complications, such as blood clots, to ultimately improve a patient’s quality of

We are committed to providing leading edge treatment options for our patients. — David Laird, CEO conditions or the risk of complications. While the LVAD can provide short-term support for those who are

life. The device features full magnetic levitation technology to optimize blood flow and maintain blood integrity. Its external control device is approximately the size of a cell phone. “Our goal is to get patients back to their everyday lives,” Jonathan Yang, M.D., surgical director of the Advanced Heart Failure Program and cardiothoracic surgeon with Cardiothoracic and Vascular Surgeons, said. “The therapies provided through the Advanced Heart Failure Program allow us to provide the best possible outcomes.”

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Mental Health 4 Reasons to Keep Laughing (Instead of Crying)

Humor is a Powerful and Overlooked Tool for Coping With Today’s Challenges. By John Bouras, M.D.


he People all over the world have been affected by COVID-19 in some way. Our normal routines have been shattered. Washing our hands, keeping a safe physical distance, and worrying about contracting or spreading the virus is our new norm. There are people amongst us who have lost their jobs and incomes, and unfortunately for some, their loved ones. Humor or laughter is probably the last thing on their mind. So, this begs the question: During these difficult and challenging times, is it OK to laugh? Absolutely! As a psychiatrist who works with patients and who has personally experienced traumatic events, I actively look for opportunities to interject appropriate humor into daily life. Consider these four ways that humor can be a powerful and effective tool in coping with today’s challenges.

1. Social Benefits and Connectedness We are all social beings. Our ability to connect with one another ensured our survival, from an evolutionary perspective. Social isolation due to “stay-at-home orders” has resulted in many people feeling lonely and alone. This is especially hard for individuals with pre-existing mental health issues. With technology, though, we can try to “virtually” connect with one another. When we share, we feel accepted and connected to one another. We can share a funny video or story, humorous anecdotes, and smiles. I remember when someone shared with me the image of someone holding a bouquet made out of toilet paper, rather than flowers, poking fun at the amount of toilet paper people were buying. 2. Stress Reduction and Physical Health Benefits We all know that stress is hazardous to our health. It may lead to

cardiovascular problems, such as hypertension and heart attacks, and mental health problems, such as depression and anxiety. Numerous studies show the benefits of laughter in combating stress. Laughter reduces physical tension and stress by relaxing our muscles, as well as decreasing levels of the stress hormone, cortisol. For individuals with underlying medical conditions, humor and laughter may provide some extra protection. By dilating blood vessels, it lowers blood pressure, reducing the risk for heart attacks and strokes. Our immune system also gets a boost by increasing the production of T cells ready to fight infections. A 15-year follow-up study from Norway showed the death rates from infection were actually lower in patients who utilized humor. Even though not a replacement for physical exercise, when I laugh extra hard, I feel as if I just had an abdominal muscle workout! 3. Psychological Health Benefits We are creatures of habit and routine. With COVID-19, we had to change our daily activities almost overnight. With schools

closed and more people staying at home (either losing their job or working from home), we see more couples and families spending time together at home, longer than ever before. Imagine any family conflict during Thanksgiving, only amplified many times more. We are prone to negativity and secondary traumatic stress symptoms. Keeping a lighthearted approach to life serves a protective function. It helps us broaden our mind and put things into perspective. It helps us view adversity as an opportunity to reevaluate our priorities in life. We can appreciate being able to spend more time with family, having less traffic on the roads (while it lasts), and taking on old or new hobbies and activities. 4. Happiness Promotion How we choose to respond to see Mental Health...page 13

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Oncology Research


Three Things to Know Before You Cancel Your Mammogram By Heather King, M.D., FACS, TexasBreast Specialists–Austin




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ore than six months into the COVID-19 pandemic, fears are growing about the long-term impact on cancer rates. Put simply, Americans are skipping their screenings and the potential consequences are a major concern of oncologists. The pandemic has made life infinitely more complex, but what hasn’t changed is the principle of cause and effect. How we take care of ourselves today will directly impact our future health. The stakes are high for women, especially when it comes to breast health. According to the Health Care Cost Institute, mammograms fell 77% at the height of the pandemic and were still down 23% at the start of the summer. What’s more, data from the National C a n c e r Institute projects as many as 10,000 additional deaths during the next 10 years from breast and colorectal cancer alone as a direct result of failure to get screened during the pandemic. While these statistics are concerning, there’s still time to reverse the trend and prioritize breast health. Mammograms can detect breast cancer in its earliest stages, often before women experience symptoms, and remain the single most important tool for prevention and early detection. Don’t let fear of COVID-19 deter you from prioritizing your health. Consider the following key factors and do not cancel your mammogram. Mammograms are the most reliable way to identify breast cancer early. According to the American Cancer Society (ACS), the size of a breast cancer and whether it has spread to other parts of the body are among the most important factors in predicting a woman’s outlook upon diagnosis. Mammograms are crucial to this process, and help doctors determine


whether additional tests, such as biopsies, are required. The ACS reports that mammograms can detect changes in a woman’s breast that could indicate cancer years before physic a l sy mptom s develop. Family health history may determine a woman’s risk for developing breast cancer. Lifestyle-related factors, such as diet, alcohol consumption, and exercise are among the cancer risk factors women can influence by their habits and health behaviors. However, when it comes to breast cancer, there are other risk factors that are determined for you, such as family health history. Women with a first-degree relative, such as a mother, sister, or daughter, who had breast cancer before age 50 are considered higher risk of developing breast cancer. Genetic testing can help determine if a woman has a genetic disorder that may increase risk of breast cancer, like the BRCA gene. Medical offices are t a k i n g extra safety precautions to conduct screenings safely during COVID-19. Temperature screenings at the clinic door, face mask and social distancing requirements, visitor restrictions to reduce clinic traffic, are some of the safety measure clinics across the state have implemented to keep patients protected at screenings and appointments. If you’re nervous about an in-person visit, ask your doctor about a telemedicine appointment before you cancel your mammogram. Your doctor can advise you on the best time to get screened. In a world that sometimes feels out of control, we are grounded in the things that are constant and expected – including the importance of cancer prevention. The Texas Cancer Registry estimates 18,478 new breast cancer cases with nearly 3,300 deaths in Texas in 2020. Please join me in encouraging women everywhere to advocate for their health with routine cancer screenings, even amid COVID-19. Together, we can fight breast cancer.

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Healthy Heart 5 Simple Strategies for Healthier Holidays By The American Heart Association


merican Heart Association’s Healthy for Good movement offers simple tips for self-care this season Nourishing yourself is smart for your heart and an effective way to take control of your health during the holidays. During Eat Smart Month this November, the American Heart Association, the leading voluntary health organization devoted to a world of longer, healthier lives, offers its latest recipes and science-backed tips to help you be Healthy for Good™. “The holidays can present nutrition challenges and additional stressors, but simple changes and investments in your own health can make an impact on your well-being and help you enjoy the season even more,” said Jo Ann Carson, PhD, RD, retired professor of clinical nutrition in Dallas and past volunteer chair of the nutrition committee of the American Heart Association. “Start small by making one more healthy choice today and build on it tomorrow.” Focus on small, consistent steps. The American Heart

Association’s Healthy for Good Eat Smart Initiative offers five tips for nourishing yourself this holiday season: 1. Get creative with swaps: Cooking at home is a great way to take control of your diet and tweak favorite seasonal dishes. Reduce sodium by replacing salt with herbs and spices, adding more fruits and vegetables to dishes, and using lower-sodium canned and frozen products. 2. Snack smart: To avoid overindulging during the holiday season, prep with nutrient-rich foods that don’t sacrifice taste. Look for snacks that will keep you feeling full and less tempted by those unhealthy choices. 3. Take your time: Don’t rush through meals. Enjoy mealtime by pausing between bites and savoring your food. 4. Use time-saving technology: Many grocers make it easy to shop deals and save time with online ordering and pick-up and delivery options. Plus, it’s easier to resist that candy bar in the checkout line if you aren’t in a staring contest with it.

5. Practice gratitude: It can help lower blood pressure, improve your immune system, and spur you to eat better and exercise more. Write down five things you’re grateful for and share them with your family and friends. Gratitude is the gift that keeps on giving. For more healthy tips and recipes visit heart.org/eatsmartmonth. Another tenet of the Heart Association’s Healthy For Good movement is Move More. A great way to get moving this month is to participate in one of the five Greater Houston Heart Walks, held November 5th and November 12th on Facebook

(@AmericanHeartTX), that encourage participants to #walkwhereyouare. Tom Stewart, Vice President of Southeast Region Sales and Account Management of Blue Cross Blue Shield of Texas, said, “As a long-time supporter of the American Heart Association in Houston, Blue Cross Blue Shield is proud to sponsor the Houston Heart Walk and continue to make strides toward ending heart disease and stroke. Houston is our home and we want our families, friends and neighbors to move more and be well, especially now, when you can walk and be active wherever you are.”


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First Heart Transplant Performed at Dell Children’s Medical Center, UT Austin 8-Year-Old Receives the Gift of Life with Heart Transplant Surgery


n a historic first for Dell Children’s Medical Center and the University of Texas at Austin, a team of pediatric heart transplant surgeons successfully implanted a donor heart in an 18-year-old patient. The Texas Center for Pediatric and Congenital Heart Disease, in partnership with UT Health Austin, the clinical practice of Dell Medical School at The University of Texas at Austin, is proud to announce the first solid organ transplant of any kind at Dell Children’s was performed on Oct. 3, 2020. “This is a new era at Dell Children’s. Heart transplant is the first of many solid organ transplant procedures Dell Children’s will offer in the future as we continue to build a world-class program that expands the breadth and depth of our expertise to meet the needs of all pediatric patients in Central Texas and beyond,” said Charles Fraser, M.D., chief of Pediatric and Congenital Surgery for UT Health Austin’s Texas Center for Pediatric and Congenital Heart Disease at Dell Children’s. “Giving

the gift of organ or tissue is such a transformational gift, and this life-saving surgery would not have been possible without the generous and courageous family who chose to donate life.” Heart transplantation was a lifesaving option for the patient who was in end-stage heart failure and suffered from hypertrophic cardiomyopathy, a disease in which the heart muscle becomes abnormally thick. The thickened heart muscle can make it harder for the heart to pump blood. He also suffered from Ebstein’s anomaly, a rare congenital heart defect affecting the tricuspid valve on the right side of the heart. He was admitted to Dell Children’s in August, just weeks after Dell Children’s announced the new Heart Failure, VAD (Ventricular Assist Device) and Transplant Program. “The pediatric heart transplant program would not be possible without the clinical partnership between Dell Children’s and UT Health Austin, which has allowed

us to recruit clinical leaders for complex surgeries, research and education, bringing together highly specialized providers in a team-based system of care,” said Christopher M. Born, President of Dell Children’s. “This milestone at Dell Children’s is a testament to the dedicated transplant team that includes surgeons, pediatricians, anesthesiologists, transplant coordinators, nurses, pharmacists, social workers, Heart Transplant Team therapists and psychologists, all leaders in this field.” Dell Children’s heart transplant Associate Vice President of the Health team is led by pediatric heart surgeon Enterprise for UT Health Austin and Dell Fraser, Carlos Mery, M.D., MPH, surgical Med. “This heart transplant is the start of director of the Heart Transplant Program, a broader effort to bring superior outcomes and Ziv Beckerman, M.D., pediatric heart for organ transplantation to treat multiple surgeon. Chesney Castleberry, M.D., life-threatening and debilitating conditions. medical director of the Pediatric Heart It’s exciting to build on the expertise of Failure and Transplant Program, is the this team and, with the addition of UT pediatric heart muscle disease specialist Health Austin clinicians such as Dr. Nicole caring for the heart transplant recipient. Turgeon, leading our overall transplant The patient is recovering at Dell Children’s services, to expand the types of conditions and is expected to be discharged in the we can address for patients across Central Texas.” coming weeks. “Organ transplants are truly a see Heart Transplant...page 14 lifeline, not just for those with heart problems,” said C. Martin Harris, M.D.,


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Filling the Continuum of Care Gap in the COVID-19 Era By Mark Fritz


ince the pandemic began, one thing has become abundantly apparent. There is a gap in the continuum of care for our nation’s most vulnerable patients. All too often, medically complex patients aren’t ready to return to their home or living facility when Medicare or private insurance will no longer cover their hospital stay. This problem was compounded during the pandemic when CMS waived the three-day hospital stay requirement, forcing many patients into skilled nursing facilities that lacked the clinical capabilities to help patients fully recover. You can have the best care teams, but they can only do so much when they do not have the resources or tools to care for a broad

short-term care under a skilled nursing licensure transitional care facilities can do the following: • Treat individuals with complex medical needs separately from relatively healthy individuals • Isolate care teams who assist healthy individuals from those who treat more medically complex patients and are at higher-risk for COVID-19 complications • Reduce hospitalization readmission rates, as patients recover under a physician-led team In September, the Coronavirus Commission on Safety and Quality in

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spectrum of clinical needs. The impact on nursing homes was summed up nicely in a recent article in the New England Journal of Medicine called “Long-Term Care Policy after COVID-19 — Solving the Nursing Home Crisis.” According to its authors, “COVID-19 has exposed the cracks in our tenuous system of providing and funding long-term care, and there are no easy fixes.” During the past few months, our industry has seen many medically complex patients return to nursing facilities that were already overwhelmed by a pandemic. Transitional care facilities that adopted a more clinical, hospital-like setting well before COVID-19 were much better prepared. Elements such as physician-led care teams, highly clinical capabilities, in-house labs and on-site pharmacies, can allow facilities to accept hospital patients earlier than most typical skilled nursing facilities. By investing in highly clinical,


Nursing Homes made recommendations for skilled nursing providers. This report includes 10 themes including “outdated infrastructure for many nursing home facilities.” What was absent from this report is the need for more transitional care operators and highly skilled clinical care. I encourage healthcare policy makers to take a more macro analysis and speak not just to skilled nursing providers, but hospitals as well. While skilled nursing facilities were hit hard, so were our hospitals, and those two are not mutually exclusive of each other. To lessen the impact of COVID-19 on the skilled nursing industry and hospitals, we need more post-acute care providers that operate in a highly clinical setting. The line between skilled nursing and assisted living has blurred so much, that those post-acute clinical settings can be difficult to find. A more segmented approach to care will help close the gap in the healthcare continuum.

Austin Medical Times

Age Well, Live Well conversation topics that impact older adults, such as housing, transportation, medical issues, recreation, behavioral health and caregiving. ASC recommends these conversations happen year-round and releases new topics during the fall to coincide with holiday gatherings. “Identifying the issues to cover can be one of the hardest elements as there are so many important aging topics we should be talking to our loved ones about,” said Holly Riley, ASC manager. “In the beginning, we went with topics that were not as challenging. You don’t want to encourage a never-beenheld-before discussion to start with end-of-life issues. However, that is one of the most critically important topics to talk about, and with COVID-19, this year we felt it was a good time to begin

with that.” This year’s topics are: • Advanced care planning • Maintaining traditions • Mental health • Preventing fraud Each worksite or organization that wants to participate in Texas Talks will receive a toolkit consisting of a communications strategy for engaging conversations through emails, articles and general guidance. To improve the program and gather feedback, a survey is sent to the participants in January. This year, to further enhance engagement among family members, the program is providing worksheets encouraging activities to help navigate these conversations. “Feedback has been very positive since we started Texas Talks,” Riley said. “Worksite participation grew in the first two years with key reasons being the timeliness and relevance of the campaign as well as the ease of

styles of humor tend to be happier. In particular, affiliative humor makes us more empathetic while enriching the quality of our social relationships. Self-enhancing humor helps us maintain or enhance our positive psychological well-being while distancing ourselves from

adversity. It helps us manage reality by reflecting and responding to threats rather than feeling utterly out of control. Sharing humor is, in some ways, akin to sharing happiness. Humor Is No Laughing Matter It is no wonder that we keep on watching funny TV shows or movies,

Texas Talks Addresses Important Topics with Older Adults By Chelsea Couch, CHES Texas Health and Human Services


he COVID-19 pandemic has shown how something unexpected can have a far-reaching impact on people’s health and well-being. For older adults and their loved ones, this highlights the importance of having a plan for emergencies as well as typical situations that come along with aging. The HHS Aging Services Coordination Office recognizes it can be difficult for family members and friends to talk with the older adults in their lives about the future and sensitive decisions to be made. In 2018 the ASC office developed the Texas Talks campaign to help ease into these important topics. Texas Talks covers a range of

Mental Health

Continued from page 6 the world can determine our degree of happiness. Humor seems to demonstrate how “happiness comes from within.” Multiple studies have shown that adults who use certain

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implementation. We work with aging experts, stakeholders and providers so we are able to hear what issues they are working on. We do a lot of research and most importantly, we listen to what communities are telling us — that really guides our focus and ensures we are addressing topics that are relevant.” To learn more and read about previous topics, visit the Texas Talks webpage. For questions, call 800-889-8595 or email texastalks@hhsc.state.tx.us.

stand-up comedians, and late-night political satire. It makes us feel better. With all the evidence on how humor can be beneficial, a more appropriate question then is not, “Is it OK to laugh?” but instead, “What are you waiting for?”


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November 2020

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Liability Risks

Continued from page 1 of their parts. While responding to health directives from state and local governments, as well as advisories from the Centers for Disease Control and Prevention (CDC) and other trusted sources, hospitals and practices will continue to experience unavoidable delays in treatment to all patients. Testing delays do not help. In addition, by patient preference, many routine checkups and tests have been delayed, not to mention routine procedures. Adverse events linked to these delays could affect physician liability. • What can physicians and practices do to protect themselves during the pandemic? • Conscientious documentation becomes a witness for the physician in the courtroom. In the COVID-19 era, practices may benefit from documenting not only individual patient interactions, but how the practice is following CDC infection control guidelines and recommendations from state and local health authorities at particular points in time. This could be as simple as jotting a daily note in an electronic calendar.

Legal Matters

Continued from page 3 that is sure to come in the near future. Along with criminal prosecutions, an increase in COVID-related civil enforcement actions is also to be expected with the creation of the Strike Force. For example, the DOJ has used enforcement actions to shut down more than 300 websites that fraudulently purported to sell products that became scarce during the pandemic, including hand sanitizer and disinfectant wipes. Thousands of victims throughout the United States paid for items through these websites but never received them. The DOJ also reported having received more than 3,600 complaints about COVID-related online scams less than two months into the declared

Heart Transplant

Continued from page 10 “Through this partnership, our faculty clinicians were able to literally give an 18-year-old a second chance at life,” said November 2020

Austin Medical Times

• How are courtroom changes during the pandemic challenging defense teams? • In a recent medical malpractice suit, a physician member of The Doctors Company, with assistance of counsel and The Doctors Company’s support, secured a defense verdict despite many changes in the courtroom environment that could have posed problems if we had not been prepared to adjust. We’ve seen firsthand how physicians facing a court hearing during COVID-19 need a legal team that is prepared for changes in depositions, jury selection, and the trial itself. For instance, depositions may be completed by video, with multiple screens for the attorneys, parties and exhibits, and jury selection may take place partly via written communication. During trial, showing evidence must be done differently, so defense teams need solid technology skills in settings where counsel can publish exhibits to the jury using large screens. Some courts are taking 15-minute breaks every hour for better ventilation and cleaning. This breaks the momentum when an attorney is speaking with a witness, reduces the overall trial time per day, and prolongs the trial duration. Taking time out of a practice to participate in an extended trial can further stress a stretched

practice. • Litigation stress places a burden on physicians at any time. How is this different during the pandemic? • Individual trials are taking longer, compounding delays from the existing backlog. This keeps physicians in limbo—and could even affect their credentialing. As previously reported by RAND, pre-pandemic, on average, physicians were already spending more than 10 percent of their careers living under the shadow of an open malpractice claim. It is true that at any time, even the best of physicians could find themselves facing an unexpected lawsuit. And states around the country handle cases differently. That’s why our members are supported by legal teams with deep roots and expertise in members’ local venues. In addition, knowing that the stress of malpractice litigation affects physicians deeply, and knowing that preparation is the key to victory, we support our members through in-depth litigation preparation. Like the COVID-19 pandemic itself, pandemic-related risk exposures are fluid. Physicians, practices, hospitals, and systems are facing rapid changes in liability exposures at the same time as the day-to-day business of healthcare is changing under their feet.

pandemic, which will certainly result in additional civil enforcement actions. The broad array of investigative agencies involved in the cases brought thus far demonstrates the vast resources available to the Fraud Section in conducting these investigations. These investigations are not just run by the well-known federal investigative agencies, such as the FBI, Secret Service, and IRS, but also include lesser-known, but equally aggressive investigative agencies like the FDIC-OIG, Board of Governors of the Federal Reserve, Small Business Administration OIG, Bureau of Consumer Financial Protection OIG, the Federal Housing Finance Agency OIG, and the U.S. Treasury Inspector for Tax Administration. The participation of such a large number of

investigative agencies is reminiscent of the federal government’s response to prior crises, such as the financial crisis of 2008, and portends significant enforcement activity by the Fraud Section. With the continued distribution of CARES Act funding as a part of the response to COVID-19, the number and scope of investigations conducted by this newly formed Strike Force will undoubtedly grow. All recipients of CARES Act or other COVID-19 relief funds should be aware of the increasing focus of the DOJ on COVID-related fraud, and should be aware of the requirements for compliance in properly utilizing these funds.

UT President Jay Hartzell. “I am moved and deeply proud that the UT Health Austin and Dell Children’s team could make sure one more vibrant, brilliant, young person gets an opportunity to share his gifts with our state and society. It is also exciting to think about what this medical milestone

means for the people of Central Texas who now have organ transplantation care right here in Austin, and for the whole Lone Star State.”


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