Avoiding malpractice claims during the pandemic

April 30, 2020

Practicing medicine is more challenging now than ever, but malpractice claims are probably not a major risk.

The COVID-19 pandemic has totally upended the practice of medicine. Physicians are having to learn how to manage patients via telemedicine, how to deal with a totally new infection, and how to keep a practice afloat during a time of shuttered waiting rooms and social distancing. Many of these new routines-from telemedicine to navigating decisions relating to COVID-19 itself-pose a variety of potential pitfalls. One particular concern is a possible increase in malpractice claims. Malpractice, however, is likely much less of a threat than it seems at first glance. 

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Low-Risk Virtual Visits

Practicing telemedicine is not, in and of itself, likely to increase your risk of a malpractice suit. According to The Doctor’s Company, a physician-owned medical malpractice insurer, telemedicine poses a relatively low risk of malpractice. For the period from 2007 to 2018, their data shows 27,559 closed malpractice claims of which only 38 involved telemedicine. The number of telemedicine claims has increased over the years as use has increased. However, the total number of cases is still low. 

Andrew Hajde, CMPE, assistant director of association content with the Medical Group Management Association (MGMA), does point out one risk of telemedicine in this particular crisis. “There are two main ways malpractice can occur,” he says, “misdiagnosis and failure to treat. If you think it may be COVID, be sure to look for other things as well.” You don’t want to miss another respiratory condition because you’re too focused on COVID-19. 

 

Different This Time

In general, malpractice claims increase during economic crises, says Hajde. But there are reasons to think that won’t be the case this time. In fact, Richard Roberts, MD, JD, professor emeritus of family medicine at the University of Wisconsin-Madison, predicts that there will be a decrease in claims.  

One reason, he says, is that visits are down. “People are afraid; they don’t want to enter the health care system.” According to an April poll by the MGMA, 97 percent of member practices have seen a drop in patient volume; for 71 percent of members, that decrease was 50 percent or more. In addition, while emergency departments and ICUs are overwhelmed with COVID-19 patients, admissions are down for other illnesses. 

But perhaps the biggest reason we might see fewer claims is the nature of the crisis itself. It’s difficult to treat COVID-19 because we know so little about it. And that may be the what protects physicians. “A key component of a malpractice claim,” Roberts explains, “is that the provider didn’t provide standard of care. What is the standard of care with COVID-19? We haven’t figured that out yet.” 

There may be some increased liability, once this is all said and done. But Roberts expects that it will be borne mostly by federal and local governments. Meanwhile, the CARES Act (Coronavirus Aid, Relief, and Economic Security Act) expands Good Samaritan protections for health-care workers who are volunteering to help with the crisis. The PREP Act (Public Readiness and Emergency Preparedness Act) offers some immunity for physicians using certain medications or therapies to treat, diagnose, or mitigate the spread of COVID-19. 

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Stay Safe

The best way to protect yourself from malpractice claims during this pandemic is the same way you protect yourself during normal times. Make sure you’re there for your patients, one way or another. If you can’t see them in person, make sure you have a reliable way to do televisits. Follow the CDC protocol for COVID-19, and check regularly for updates. This virus is a fast-moving target and the guidelines are changing quickly. And beware treatments not authorized by the FDA. 

Most importantly, says Roberts, “Do the best you can. In the end, the question will be, ‘Did you act responsibly?’ Just practice good medicine and you’ll be fine.”

References:

Doctor’s Company malpractice stats:

https://www.thedoctors.com/articles/covid-19-telehealth-resource-center/

 

STAT poll on volume:

https://www.mgma.com/landing-pages/covid-19-resource-center/financial-assistance-and-guidance-for-practices/staying-afloat-as-patient-volumes-and-revenues-dec

 

AMA on CARES Act protection:

https://www.ama-assn.org/practice-management/sustainability/liability-protections-health-care-professionals-during-covid-19