Minimizing litigation risk in the post-COVID era

Now is a good time to step back and bring this fresh mindset to reassessing policies and procedures

Physicians have had to become more agile and nimble than ever in providing care to patients during the COVID-19 pandemic. As we look to a post-COVID era, now is a good time to step back and bring this fresh mindset to reassessing policies and procedures.

There were countless learning moments in 2020 as physicians scrambled to modify their check-in procedures, waiting rooms and examination rooms so they could safely see and care for patients. Some practices had minimal telehealth services in place and moved quickly to create the infrastructure, technology and training needed to see patients on secure videoconference or telephone platforms. While now necessary, telehealth services create a challenge in that they preclude providers the opportunity to lay hands on their patients and provide proper examination. This has forced medical providers to adapt in their practice of medicine as the global pandemic has demanded major changes to be made almost on a daily basis. 

In addition to the innovations that many physicians adopted in 2020, the pandemic underscored the necessity of updating policies, procedures, staff training, documentation, communication, and overall mindset for how physicians approach patient care in the new reality of an infectious world.

Despite the PREP Act’s immunity protections for health care providers, countless COVID-19 lawsuits have already been filed, and new ones are emerging daily. Plaintiff attorneys are getting creative in their attempts to allege liability for things such as misdiagnosis, wrongful diagnosis, or negligent care. These tactics underscore the necessity for health care providers to be incredibly diligent in how their practice is run.

Demonstrating that policies, procedures, and protocols are based on guidance and recommendations from the Centers for Disease Control and Prevention (CDC), state and county departments of health, and other regulatory or public health authorities is critical. Physicians must also be able to show that their policies are regularly updated and reviewed by the proper personnel and that any citations or lapses are taken seriously and corrected to mitigate the risk of infectious spread.

While documentation errors and lack of documentation are always an issue, the events of 2020 further emphasized the importance of complete, accurate, and timely documentation. Furthermore, the value of capturing additional information that wasn’t standard practice before the pandemic has also become vital in defending against various liability claims against providers.

For example, a patient’s passing remark about having dinner with friends last weekend could later prove to be important for contact tracing and quarantine protocols if the patient or one of the friends developed possible symptoms. The simple task of charting such a remark could serve to reduce COVID spread among a household, family, or a larger group of people. In these unique times, even the most minimal action could stem the tide of infection in families and communities.

Cleaning protocols, including whether EPA-approved List N disinfectants for emerging pathogens were used, must be carefully documented, in addition to screening procedures. Can you demonstrate that all staff, including vendors and contractors, were properly screened for fever and other symptoms before every shift? When there was a confirmed or suspected case of COVID at your facility—regardless of whether it was a patient or a staffer—what protocols did you implement? Who did you notify, and how did you communicate with staff and other patients who may have been exposed? Was anyone hospitalized? When did staff return to work?

To reduce the risk of litigation in the first place, every practice should conduct an immediate internal audit to reveal potential weaknesses in current policies, staff training, and documentation protocols. Listen carefully to patient complaints and feedback because there is often a kernel of truth that can inspire improvements. A patient’s idea for a simple change such as making hallways and corridors one-way could be an easily implemented change that makes patients and providers feel safe and ultimately enhances social distancing.

Should a practice be sued, it’s important to be able to show that the entire staff was acting in accordance with (or above) the standard of care. In the field of medical negligence, it is inevitable that the PREP Act is going to be challenged and tested extensively in the coming months, and it is paramount that providers can demonstrate that there was no willful misconduct. Sound policies, procedures, training, documentation and communication will help ensure that practices can continue providing the very best patient care for many years to come.

About the Author

James “JJ” Maskowitz is a partner in the Tampa, Florida, office of Hall Booth Smith, P.C. He defends physicians, hospitals, long-term care and aging facilities, insurers and other health care providers in a wide range of medical malpractice, liability and other litigation. He can be reached at jmaskowitz@hallboothsmith.com.