Preventing pandemic liability risks
Already a worry for physicians and health care providers, the COVID-19 pandemic has compounded liability risks – and the effects remain to be seen.
An interview with David Feldman, MD, chief medical officer of The Doctors Company, in Medical Economics highlighted the liability issues stemming from COVID-19 and how practitioners can protect themselves from lawsuits.
Dr. Feldman highlighted the main liability risk to physicians during the pandemic: misdiagnosis. “…Clinicians are stressed, patients are anxious, and testing is difficult,” he answered. “All of that just makes it even harder for clinicians to be sure they’re making the right diagnosis.”
He focused on preventative steps, and the importance of prevailing in a liability lawsuit through extensive documentation.
As many patients hit the pause button on preventative care, Dr. Feldman discussed how physicians should protect themselves when working with patients who may be passing on annual screenings.
“It’s just writing down in your chart what the communication has been with your patients to let them know they really need to come in and get their preventative testing done,” he explained. “It’s really documenting everything. You want to be able to look in the chart and see that you did all the right things.”
While it may be too early to see the impact of the pandemic on liability lawsuits, physicians can take steps now to protect themselves in the years ahead. To read the full interview with Dr. Feldman in Medical Economics click here.
Capitol Project: A federal focus on COVID-19 recovery
In an effort to streamline federal protections for businesses and health care providers across the U.S., a new bill has been introduced in the House of Representatives to mitigate meritless lawsuits stemming from the COVID-19 pandemic.
H.R. 1101, the Protecting Reopening Businesses Recovering from COVID-19 Act, was introduced by Representative Ted Budd (R-NC) and would offer legal liability protections for businesses and certain medical facilities as operations recover.
“Congress should be doing everything in our power to make sure that small businesses are able to reopen as quickly as possible,” Congressman Budd stated. “My bill helps achieve that goal by preventing businesses and certain medical facilities from being hit with frivolous legal claims relating to COVID-19.”
H.R. 1101 would protect businesses and medical facilities from liability for damages arising from a claim that an individual contracted COVID-19 at the business or medical facility if the establishment was operating in accordance with applicable state or federal guidelines, and implementing measures outlined by the CDC and/or state or federal agencies, to protect against the spread of COVID-19.
It would not apply in situations of gross negligence.
The HCLA continues to support state and federal efforts to prevent unwarranted lawsuits that may arise from claims of COVID-19 transmission, or inability to access care through no fault of the health care providers who remain on the front lines of the pandemic response.
Click here for a press release on H.R. 1101, and here for the full bill text.
Alabama enacts pandemic protections for health care providers
A priority in the first weeks of the state’s legislative session, liability protections for health care providers, schools and businesses were signed in to law in Alabama.
These protections offer immunity from civil liability that stems for issues beyond the control of hospital systems and physicians, as well as business owners, during the COVID-19 crisis.
As it was signed into law, the bill offers immunity for health care providers from “any damages, injury, or death alleged to have been caused by an act or omission of the health care provider during the performance or provision of health care services or treatment that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the coronavirus pandemic or the state’s response to the pandemic.”
This bill ensures that physicians and hospital systems are protected from medical lawsuit abuse as a result of early PPE shortages, changing guidance, and any delay in providing treatments for elective or non-urgent procedures.
This newly enacted law in Alabama follows other recent legislative activity in Montana, South Dakota, and Indiana.
The HCLA has tracked pandemic related liability legislation at the state level, with a COVID-19 resource page to highlight laws and executive actions.
Click here to read about Alabama’s updated bills, and here for the HCLA COVID-19 resource page and state tracker.
Missouri Supreme Court to hear case on non-economic damages
Medical liability laws in Missouri have bounced back and forth between the state’s courts and legislature, with the constitutionality of non-economic damages once again on the docket for the state’s Supreme Court.
When liability laws were struck down previously by the court, they were cited as invalid under a state constitutional provision guaranteeing the right for a jury to decide damages.
That required action by the legislature, which in 2015 altered the common law cause of action for medical negligence to a statutory cause of action, in keeping with prior Supreme Court rulings on the constitutionality of damage caps.
Now, an appeals court says the present case falls in a legal gray area and requires the Supreme Court to rule on whether the legislature had the authority to take that step.
“The legal effect of the legislature’s rechristening of a common-law course of action as ‘statutory’ has not previously been decided by the Supreme Court,” the appeals court ruled.
To read more about the case and underlying liability laws that now head to the Missouri Supreme Court, click here.
Iowa Alert: Liability legislation introduced in state House
The bill, HF 517, would raise the current $250,000 limit on non-economic damages to $1 million, but simultaneously eliminate the exceptions which allowed the current cap to be easily circumvented. Like current law, the bill would apply the limitations to civil actions against a health care provider for claims of negligent injury or death.
Last week, HF 517 was reviewed by a House subcommittee and advanced out of the House Human Resources Committee. HF 517 is now eligible for floor debate.
The Iowa Medical Society has been strongly advocating for HF 517, writing to members, “We need a groundswell of support from local physicians to help move our final holdout votes in the House and secure passage of this critical reform.”
Protect Patients Now grassroots supporters who live in Iowa can express their support here for the legislation through an Iowa Medical Society Action alert that will be sent to their elected officials.
To read the bill text in full, click here.