Alternative approaches to COVID-19 liability

As the COVID-19 pandemic reaches new heights into the fall and winter, an opinion piece highlights the medical liability crisis that could lie ahead — and an alternative resolution.

Writing in the Journal of the American Medical Association, legal and medical experts William M. Sage, MD, JD; Richard C. Boothman, JD; and Thomas H. Gallagher, MD; analyzed liability insurance trends and non-traditional approaches to reform amid COVID-19.

While some states have passed or enacted liability protections related to health care delivery during the health emergency, the opinion piece highlighted that the medical liability insurance market entered a new period of growth in 2018, with rates growing 5.4%. Rates for 2019 rose another 1.2%.

The authors advocate for consideration of communication and resolution programs — such as the well-known ‘Michigan model’ — that allowed the health system to forgo excess coverage.
This approach “reduced financial uncertainty by promptly resolving most well-founded claims without litigation,” the authors state.

Now, the writers are urging policymakers to incorporate this alternative model in COVID-19 liability initiatives.

“Applying communication and resolution program principles during the pandemic could both improve quality of care and avert high-dollar claims, which in turn could potentially reduce medical malpractice insurance costs,” they state.

The HCLA supports alternative models, such as communication and resolution programs, alongside proven traditional liability reforms and will continue to advocate for a national, comprehensive approach at the federal level.

To read the JAMA opinion piece in full, click here.

Ask the expert: COVID-19 physician liability

An interview with an executive from Coverys, a medical liability insurance provider, offers insight into physician liability risk in the age of COVID-19.

Stephanie Sheps, vice president of claims for Coverys, spoke with Medical Economics about new threats to the practice of medicine as COVID-19 liability claims begin to emerge.

Responding to questions about new threats to health care providers in the wake of the pandemic, Sheps shared how most liability issues may not come from COVID-19 transmission.

“I believe that the greater liability actually stems from pandemic-related or contextual realms,” Sheps said. “And so, pandemic risks are those that do not involve the diagnosis or treatment of COVID-19, or the transmission of it, but are related to the changes in how healthcare is currently being delivered or not delivered.”

This includes delaying or deferring preventative care and treatment, pausing elective surgeries, and lack of hospital capacity.

The interview also discussed where pockets of liability lawsuits are likely to form in the future.

“…I suspect that we will see more case activity in states that don’t have specific immunity for COVID-related countermeasures. So some of those are legislated, some of those are by executive order, but those states will probably see more activity. Also we’ll probably see more activity in states without tort reform, that is states that do not have caps on non-economic damages.”

Sheps also explained the importance of clinical risk management and record-keeping that will serve today’s health care heroes well if and when liability lawsuits are filed in the future.

“I think it is so important as memories fade, to get a context and to have a living example of how we functioned during this pandemic,” Sheps emphasizes. “Because hopefully, it will be but a distant memory a few years from now. And it will be important to be able to bring a jury back to this period in time and to really illustrate what it was like to deliver health care during a pandemic.”

To read the full interview in , click here.

As telemedicine increases — so do the risks

The use of telemedicine has surged during the COVID-19 pandemic, and new studies highlight the liability risks that providers should be mindful of as its popularity increases.

In early May, a survey of patients showed that over 40% had used telemedicine during the pandemic to manage their health care needs.

The Doctor’s Company, a member of the HCLA, recently published a study on the liability risks that telemedicine poses. These include suboptimal diagnoses and treatments, along with the added threat of failure to refer, as well as issues with confidentiality and prescribing medications online.

Michael Leitman, MD, Dean for Graduate Medical Education, Designated Institutional Official, Professor of Surgery, and Professor of Medical Education, Icahn School of Medicine at Mt. Sinai, was spotlighted in the study for his role in launching the organization’s telemedicine effort. He found that regardless of specialty, the type of visit best suited to telemedicine is “a very focused patient evaluation” for a specific problem that can be evaluated mostly by question and answer.

Sharing key takeaways necessary for mitigating telemedicine risks, the report emphasizes training staff, educating patients, documenting visits, securing information, and not forgoing in-person care when a telemedicine visit is deemed insufficient.

The report concluded that “telemedicine is a helpful adjunct to in-person care, when supported by best known practices.”

To read The Doctor’s Company report on telemedicine risks and benefits, click here.