Ike Devji, JD

 As physicians across the country get their practices reopened and back to the new normal, we examine COVID-19 infection liability waivers and their effectiveness in managing patient infection lawsuits.

Coronavirus infection liability creates significant professional and personal legal risk for doctors. From family practices to cosmetic surgery, practices are struggling to 

 with a combination of reduced patient volume to due fear of infections and lockdowns; labor shortages; and now, a massive number of unemployed, hence uninsured, patients. We’ve followed a variety of risks since the crisis emerged, including a look at the ways a global pandemic 

 risks including shifting standards of care as more states are now operating at or near their crisis contingency plans.

Shockingly, practices across the country are taking very different approaches to protect their patients and staff. One Scottsdale medical professional told me about her own recent medical visit to her physician; no pre-screening, no temp check, no signage about not entering if sick, no social distancing, and no masks. She asked her doctor why they weren’t taking those basic precautions and he responded, “Well, we haven’t had any cases in here yet”. My response was that 

a doctor’s office should be at least as hard to get into as an Apple store

, which recently required every single item on the list above of me, before I could enter.

Coding and billing for advanced practice clinicians

Will A Covid-19 Infection Liability Waiver Protect Me?

A well drafted waiver can be one part of a risk management plan but like most asset protection strategies, should not be relied upon as complete protection 

. Waivers cannot provide a shield against 

 conduct and are typically only effective against mere “negligence”. Waivers may be frowned upon by courts, are construed in favor of the plaintiff and may also specifically be void for public policy in certain settings. As such, waivers should narrowly comply with state law and should be professionally drafted. Other layers of protection should 

 include insurance and fact specific legal tools.

Enforceability of Waivers —Four Important Factors the Courts Will Examine

Was it clear and obvious that they were signing a “Covid19 Infection Liability Waiver” and that it “may affect important rights and future legal remedies”? (make it dummy-proof, don’t minimize its importance at check in or pre-screening, etc.)

Was the too broad or inclusive or was it narrowly drafted with language specific to the risk of COVID-19 infection in a public setting? Avoid ‘kitchen-sink’ waivers that throw in too many items.

Did the patient have meaningful opportunity to review, question and reject the waiver before treatment was rendered? Did the patient have a choice (i.e. emergency services were required) and did they provide informed consent? Consider providing the waiver in advance as part of your pre-screening process.

Evidence of sterilization and safety standard compliance is another vital line of defense. Is your organization able to provide affirmative defenses like the following about the proactive steps you took and the expenses you incurred specifically to prevent infection? 

Are you compliant with standards and safety protocols established by local, state and federal law?

 including any guidelines provided by your specialty medical associations?

 infection compliance and office safety program in place for sterilization and staff and patient screening that all staff and patients are aware of? 

Yes, this means denying service to those who won’t comply.

8 Ways to Play the Prior Authorization Game

Are You Obtaining Specific Informed Consent on Infection

Obtaining informed consent about COVID-19 infection risks and all its other potential effects on patient treatment is another vital affirmative defense and waivers are always more effective when backed by it. Effective informed consent forms and procedures DO NOT merely add a line about infection risk, seek professional guidance and document this additional communication carefully.

Think broadly and advise patients of possible treatment delays that may occur due to their illness, staff illness, local law (lockdowns, elective treatment restrictions), hospital bed availability, PPE availability and other issues beyond your control.

Discuss options for and risks of delayed treatment

Disclose your COVID-19 screening and testing requirements to be cleared for treatment including the risks of false negative tests

Discuss post treatment follow up protocols

, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at

Articles

As physicians across the country get their practices reopened and back to the new normal, we examine COVID-19 infection liability waivers and their effectiveness in managing patient infection lawsuits. 

Will a waiver protect me from COVID-19 infection claims? 

As America returns to work after a week of national political trauma, physicians need to protect their assets, including their practices, from significant additional risks. 

As a physician, your asset protection and risk management planning logically center on professional risk and medical malpractice in particular, but it certainly should not end there. A medical practice owner has all the unique risks related to patient care and health care law compliance and the complex legal liability of every other business in America. As we’ve seen on the news this week, and as many of you experienced first-hand, those risks can change rapidly and unpredictably. 

While the national protests related to the death of George Floyd at the hands of Minneapolis police officers have been increasingly peaceful with every passing day and the looting and damage has tapered off, we are not out of the woods yet. There is a long and heated election season ahead of us and the potential for additional political unrest is significant, especially when combined with the pressures of the covid-19 coronavirus and significant economic pressure including a 16% unemployment rate, 

, as we’ve previously discussed. These are some areas that require immediate caution. 

How Poor Payer Reimbursements are Affecting Practices During the COVID-19 Pandemic

In these highly charged times, we are continually reminded that nothing is private and your own bad acts and deeds can spread around the country in hours thanks to social media. You have likely seen several people commit professional suicide this week alone including a Maryland 

 to assault some children over their protest flyers, the naval college official who accidentally 

 with his wife on Facebook and just yesterday morning, the alleged 

 melting down and getting slapped in a Phoenix gas station. 

Consider your own conduct and address your expectations and the risks with your family members, staff, children and partners proactively. The effects of such conduct can destroy a business or a professional reputation, even if not by an owner, and many cases will require that the offending party will need to be severed from the practice. Measures required may range from discipline and suspension to termination of employment or even the 

 due to their disqualifying conduct, assuming you’ve legally prepared for it. You may also need legal representation and crisis 

 if the act involves the business. Imagine the headline, “Doctor filmed on racist tirade, member of high-profile Surgical Practice”. 

While there was undoubtedly looting, destruction of property and violence in communities across the country, the majority have been peaceful and that has largely tapered off. That said, tensions and fear remain very high and 

 are being amplified by disinformation spreading through social media including 

 of “Antifa and BLM hordes” being bussed  into the suburbs. 

This fear creates real risk and innocent people have already been assaulted by triggered individuals that have armed themselves and who are acting out without legal cause. As a practice owner and law abiding American you certainly do have 

 but my concern is that a large number of people are now afraid 

 armed, many lacking the training to do so legally and effectively. 

5 questions to ask about wRVU compensation

Please consider the following civil unrest risk management and leadership checklist as part of your business planning:

Does your practice have a published (meaning it is posted and that third parties are actually made aware of it) and enforced policy that limits how and 

if firearms and other weapons are permitted

 in your place of business by non-employee guests like patients and vendors? 

Does your practice have a published and enforced 

 about the possession of firearms and other weapons by staff and physicians in your place of business? 

Does your practice have or need additional commercial liability insurance including 

 to protect itself, staff and patients from acts of violence? 

Does your practice need additional physical security measures, either active (like guards) or passive (like cameras, locks, buzzers and barriers) to protect staff and patients? Remember that just weeks before the current political crisis, medical practices, providers and hospital facilities were being targeted by coronavirus “truthers’, some of which were violent. 

Again, risks evolve based on factors both inside and outside your practice, we will follow this situation closely and keep you informed. 

, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at 

As America returns to work after a week of national political trauma, physicians need to protect their assets, including their practices, from significant additional risks.

Political conflict creates medical practice risk

As America returns to work after both Memorial Day Weekend and coronavirus quarantines, predictable seasonal risks put physicians’ assets at risk. 

This Week Raises Your Personal Liability 

Memorial Day starts the period known as the “100 Deadliest Days”, a period of significantly increased liability for a variety of injuries and accidents, including fatal car accidents, that runs through Labor Day. While not all of these accidents can be attributed to children many of them are, and car accidents are the leading cause of death among teens, with those age 16-19 being most at risk. In addition to the obvious horrific tragedy of losing a child or causing the death or grave injury of a passenger or another driver, you face financial liability for your children that could be life changing for an entire family. 

During the summer teen drivers are out of school, have significant free time, and spend more unsupervised time behind the wheel on non-essential, discretionary travel. The vast majority of these teens are driving vehicles owned and insured by their parents, who have significant liability for the actions of their children. I’m concerned that this usual risk has been significantly increased by COVID19 lockdown conditions that have left many teens (including your adult children that may be home for the summer, or longer, from college etc.) bored, restless, and feeling socially deprived of the company of their peers. This rush to “make up for lost time” is being accompanied national surge in speeding tickets. Increased speed is being accompanied by a loss of driving skill due to being out of practice, a bad combination. 

1.    Know all the risks and control predictably dangerous driving behavior. There are four primary driving behaviors and fact patterns that lead to accidents, serious injuries, and fatalities with teen drivers; 

 (including distractions caused by passengers and smart phones, distractions are involved in 2 out of three cases), and 

 and take steps to control their behavior. If you can’t make them confirm, take the keys.

While automobile accidents are the biggest part of this seasonal risk, they certainly aren’t your only source of parental liability. Some other common recurring risks to be aware of include:

Social media liability, including cyberbullying, stalking, hacking, and sexting

Injuries incurred at your home, vacation homes, or incurred with your recreational vehicles, boats. etc.

Issues of consent for sexually active teens

Access to potentially dangerous items in your home including alcohol, prescription drugs, and firearms

2.    Don’t draw personal liability into your business. I have repeatedly advised readers to avoid leasing or purchasing their (and their family members’) personal use vehicles in the name of their medical practice or other active business in order to obtain a tax deduction. While your CPA is correct about the tax advantage of doing so, that amount of savings is not worth dragging a potential 

 for a serious accident into your primary revenue producing business. If you are doing so, consider holding title personally instead and discuss taking a car allowance instead with your CPA. 

3.    Be heavily insured and know the details, not all policies are the same. Insurance is your most cost effective and predictable line of defense. Automobile insurance with both a high limit personal liability umbrella of at least $2MM and at least mid-six figures in un-insured (UIM) an underinsured motorist (UM) coverage is vital. Do not assume that you have adequate UIM and UM coverage just because you purchased an umbrella, the limits are often separate and significantly lower and those most at risk from the actions of your children may need to reply upon this coverage, 

, if you don’t have it. If your adult children are using vehicles you own, consider transferring title to them and getting them separately insured to distance yourself from their liability. 

4.    Actively protect yourself beyond the limits of your insurance policy. While heavy insurance coverage is a key part of every physician’s asset protection plan, you cannot rely on insurance alone to be a magic bullet that protects you and your wealth against a universe of infinite risk. Gaps in coverage include exclusions, policy limits and reductions in coverage for intentional acts, driving while impaired and not wearing a seatbelt, as just a few common examples. 

We’re entering a period of significantly increased liability.

Why the next 100 days threaten physicians’ assets

The coronavirus crisis, its intersection with healthcare policy and how it has personally affected physicians across America has encouraged many doctors to be more politically active than ever before. Here are the basic answers to some common legal questions about political donations. 

Using these guidelines will help physicians and practice leaders exercise their rights in a legally compliant way that will help avoid both legal exposure and negative media attention. As always, this summary is not specific legal advice that can account for your unique fact pattern and should be treated as resource for your own compliance and due diligence. Where available, these guidelines come directly from the Federal Election Commission (FEC) itself, the government agency that regulates and, at least theoretically, enforces election law including statutes controlling donations in all forms, including non-monetary contributions.

7 Financial Reports Your Practice Needs to Run

, including individuals and certain specific business entities including 

 (but not your professional corporation, see details below), depending on how those entities are taxed. Individuals can contribute to candidates, parties and a variety of different political organizations to different amounts. Both minors and adults can give, but if you’re planning to give your minor children money specifically to make contributions that you are directing, that’s not allowed. It needs to be their own money and their choice. 

Who Can’t Make Political Contributions?

The list of prohibited donors is long and detailed, for the purposes of our discussion and the interest of readers, here are some key details. Campaigns are prohibited from accepting contributions from certain types of organizations and individuals. These prohibited sources are:

Your “Professional Corporation” Can’t Contribute. Although law firms, doctors’ practices and similar businesses are often organized as partnerships, some of these businesses may instead be professional corporations. Unlike a partnership, a professional corporation is prohibited from making any contributions because contributions from corporations are unlawful.

Corporations, including nonprofit corporations (although funds from a corporate separate segregated fund are permissible)

Labor organizations (although funds from a separate segregated fund are permissible)

Foreign nationals (exception for “green-card” holders as permanent resident aliens) 

Probably not, at least not directly to a specific candidate and especially if you are donating over fifty dollars and using any form except cash according to the FEC. 

An anonymous contribution of cash is limited to $50. Any amount in excess of $50 must be promptly disposed of and may be used for any lawful purpose unrelated to any federal election, campaign or candidate.

Federal law requires disclosure of most significant contributions over $200 

which includes donors' names, addresses, occupations, and employer information, and that then becomes public record freely available and tracked by 

 contributions to stay on the safe side of the disclosure laws.  

 did a great job in breaking down some of the details in an article on 

that all political action committees (PACs), political parties, and federal candidates disclose any and all contributions that they receive that are over $200. This information, which includes donors' names, addresses, occupations, and employer information, then becomes public record freely available - and easily searchable - via 

8 Things Your Practice Should Do to Stay HIPAA Compliant

Surprisingly to many, you are most limited in giving money to a specific candidate directly ($2,800) but can make very large contributions ($100K plus) to national party committee account and 

 that breaks down contribution limits based on both the type donor and the type of recipient. Cash (actually currency) contribution limits are most specifically limited by the FEC.

A campaign may not accept more than $100 in cash from a particular source with respect to any campaign for nomination for election, or election to federal office.

A contribution is anything of value given, loaned or advanced to influence a federal election. It can take many forms including 

Direct Monetary contributions and personal loans 

In-kind contributions of goods and services offered free or below market rate 

Finds obtained through sales, fundraises and purchases of political items or event tickets

Where available, these guidelines come directly from the Federal Election Commission (FEC) itself.

Author | Ike Devji, JD

Articles

Will a waiver protect me from COVID-19 infection claims?

Political conflict creates medical practice risk

Why the next 100 days threaten physicians’ assets

Political Contribution FAQs: Business Rules, Anonymity, Limits