Keep a COVID-19 Diary: Document Now in Case of Future Lawsuits Debbie Kane Hill, MBA, RN, CPHRM, CPPS
What the future holds relative to the evolution of COVID-19 remains unknown, but it is certain that litigation for COVIDrelated claims is on the horizon and will impact physicians in all medical specialties and practice models. According to attorney John E. Hall Jr., founding partner of Hall Booth Smith in Atlanta, Georgia, which specializes in defense of high-exposure cases involving hospitals and medical malpractice claims, COVID-19 claims are looming in the next one to three years. Mr. Hall addresses the most important questions and provides his expert guidance. Are there existing medical liability protections in place? The Public Readiness and Emergency Preparedness Act (PREP Act) provides a significant safeguard for physicians. The PREP Act provides complete preemption, meaning that “any state law or other federal law that contravenes the PREP Act is replaced by the PREP Act. Except in cases of death or severe injury caused by willful misconduct, the PREP Act provides complete immunity, with no liability under those circumstances” if the claim is COVID-19 related and the case is tried in the federal court system, according to Mr. Hall. In addition to the PREP Act, states have established some level of
immunity for medical practices through healthcare immunity orders or executive limited liability orders. What types of claims are anticipated? It is expected that COVID-driven claims will take a variety of forms. Some claims may allege: • Delayed or missed diagnosis due to lack of patient follow-up • Failure to triage/assess including testing issues, resulting in missed COVID-19 diagnosis/intervention • Failure to immunize • Delayed care in office visits, testing, labs and procedures • Failure to adhere to infection control protocol and/or lack of PPE • Limited healthcare resources (hospital beds, ventilators, etc.) What steps can physicians take now to prepare to defend claims in the future? Mr. Hall suggests that one of the best ways to establish defense of these claims is for practices to begin developing continued on page 15
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14 The Bulletin | Spring 2021
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