Regulatory Updates and New Claim Threats Stemming from the Pandemic

August 31, 2020

A brief overview of some of the key regulatory updates enacted during the pandemic, as well as new claim threats that physicians may face in the near future.

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Physicain's Practice: In the early stages of the pandemic’s full onslaught in America, politicians acted quickly to expand physician practice abilities. While some updates like the ability to practice across state lines were welcomed, some changes have led to concerns about new claims against physicians.

To digest some of these new regulatory updates as well was what new claim threats you might face in the near and distant futures, we spoke with Stephanie Sheps, a licensed attorney currently serving as the Vice President of Claims at Coverys, a leading medical professional liability insurance provider.

Stephanie Sheps, JD: So starting at the very beginning, whether it was regulatory or at the actual provider or facility level, there were a lot of changes that had significant impact on the way providers were conducting their business. That could range from the cessation of doing elective procedures in ambulatory care settings. It could also be within hospitals that they wanted to make sure they didn't have a full patient population in case there was a surge. A lot of screenings, and other primary care type visits, were either completely delayed or moving to telehealth. And with all of these changes in practice, comes a greater risk of liability.

Physician’s Practice: One of the first major pieces of legislation worth discussing in this context is H.R. 7059, a bill introduced in May and currently with the Judiciary Committee. Here’s Stephanie’s brief explanation: 

Sheps: Basically, it is very broad immunity protection for health care providers and facilities for care rendered in either treating COVID-19 or treating patients during this emergency period, plus 60 days that's tacked on for the end of the crisis. And it should really be a complete blanket cover that is even more specifically geared to health care providers, then the prep Act, which should hopefully prevent litigation against any healthcare providers for rendering care during this time.

Of course, there are some exceptions to it for willful or criminal conduct. But this has really just been if care provided in good faith, it would provide immunity protection. The bill has bipartisan support, although it hasn't really moved very far since it was introduced in May—I think it's still sitting in the Judiciary Committee. We have high hopes that it'll move through.

Physician’s Practice: Some of you might be wondering specifically about telehealth regulations and liabilities. As the industry saw its arguably greatest shift to digital means of communicating with and treating patients, Sheps says that some federal regulations that allow telehelath to be used more broadly and expand a physician’s scope of practice were passed; however, she is quick to note that those were already dialed back a bit. Whether or not this has a long-term impact on the breadth of how physicians practice, Steph says is still unknown.

Sheps: With respect to liability in telehealth, the good news is that we have not seen any actual claims or incidents related to it yet. Of course, the risks are always there. There are cyber risks related to the security of those interactions. There's of course the issue with patients who may not have access to the proper equipment for telehealth.

I've heard some upsides actually, from the provider perspective, that they get a window into the patient's world and environment that may give them some sense of why they have certain health struggles for, you know, things that they deal with and different conditions.

But I think we're sort of waiting for the other shoe to drop. Again, this is a long-tail business. And so it may be six months or a year from now, where we find out that, you know, the telemedicine dermatology visit where somebody, you know, showed a lesion to the provider, and it was determined that it wasn't necessary to biopsy that that person should have been seen in person so that you could put hands on a patient. I mean, there is a reason that we typically do see our providers in person. But I think also though, for some other telehealth specialties, that things will probably remain that way for quite some time and that they're really benefiting from treating patients. In the virtual world

Physician’s Practice: Still, some might be concerned about new liabilities in general, whether as a result of these new regulations or as a result of the treating patients during the pandemic, that might lead to claims being filed.

Next, Stephanie explains some of the claims she’s seen as well as why physician’s should be ready for, as she describes it, a “contextual COVID claim”.

Sheps: There's the obvious the failure to diagnose COVID, the transmission of COVID within the healthcare setting. We’ve actually received a few claims of patients who said that they contracted COVID from going to a provider for a routine visit at the very start of the pandemic. We've had other providers advise us that they've tested positive and had to go ahead and try to notify all of their patients to do contact tracing.

Those are the obvious ones, then there's everything that I'm calling a “contextual COVID claim”. It's really the situation of anything where treatment has taken place from, say mid-March, to really present day. Where the context that surrounds the care that's being given is of course being influenced by the pandemic. So it's, you know, not being able to get in to see providers in person because even as they reopen they’re only seeing a few patients in a day and one patient could only be in the waiting room at a time.

All of these things are going to contribute, in the long run, to failure to diagnose claims, delays in diagnosis of cancers. There's also been this sort of ancillary effect of people not seeking care when they needed it during this period of time because they've been told there are surges, the emergency rooms don't want to see you unless it's really critical and if they are not able to self-diagnose and know that they're having an appendicitis rupture, or having a stroke, they're not seeking care. So all of these contextual claims are things that we're keeping our eye on. And my colleagues and I are trying to monitor to make sure that we're doing everything we can to mitigate bad outcomes, protect our health care providers—which is really our key mission—and to make sure that they can focus on being healthcare heroes and not worrying about negative outcomes down the road.

Physician’s Practice: Of course, another concern for physciains is how to get patients back into the practice. Obviously, you want to make sure your patients have been staying healthy and haven’t been avoiding seeking care out of fear of contracting the virus at your practice or believing they won’t be able to get an appointment.

As you start to develop communication strategies to get patients returning, Stephanie says you should be developing a careful triaging plan to give the best care while also avoiding the most liabilities.

Sheps: We recommend that providers really take a moment to not just rebook based on when the appointments have been cancelled, but to very thoughtfully triage and see the patients in person who need to be seen most urgently patients who have who maybe aren't as compliant with their care, and to really do some aggressive risk management in terms of making sure everybody gets in and also having very cohesive systems in place to make sure that everybody gets seen at some point in the near future, being mindful of the fact that things may revert at some point as well—again, we hope not. But if they are unable to see any patients again in person for preventative care, that they have a really strong diary system tickler system to bring the patients.

Physician’s Practice: So, as a recap, how can you best protect yourself against claims related to services provided during the pandemic? Here’s what Sheps had to say…

Sheps: One of the things that we've been recommending to all of our providers and facilities is to keep very detailed records of what has happened in their practice during this period of time. You know, medical malpractice is a long tail business. And if by the time if claims are brought, by the time any of them see a courtroom, it'll be years from now. And if we're lucky as a society COVID will be very, very distant in our rearview mirrors and we won't be able to remember what things were like at this period of time.

We’re recommending that providers keep track of all of the critical times and dates and the content of key events, any physician or other staffing shortages at that facility anytime they were rationing or short on PPE, anytime that the you know, either state or local or even facility regulations limited practice in some way, any communications that went out to patients, the first time you were able to send somebody for COVID test, the first time somebody's tested positive, and really just keeping a linear sort of layered timeline of what was going on within the practice within the locality within the state and even within the country during that period of time so that they have this running document and they don't have to recreate what happened at that time, because the critical factor is going to be establishing a crisis standard of care, so that providers are not being held to what would have been the standard of care six months or a year ago.

Physician's Practice: Once again, a huge thank you to Stephanie Sheps, attorney and Vice President of Coverys, for taking the time to speak with us.