New Vaccine Hope
the recent vaccine news, we can finally begin to have hope about a light at the end of the tunnel of this pandemic and return normalcy. While the vaccines may potentially provide the widespread immunity needed to quell the spread of COVID19, questions remain about the medicolegal immunity medical providers will afford during and well after the pandemic.
As an emergency physician, I can also attest to the difficult conditions that those on the front lines of care have had to endure. PPE, supply, and hospital bed shortages have added to already difficult challenges to the treatment of the virus. Hospital surges and staffing shortages have forced providers to practice outside of their traditional scope of practice to meet the heavy demand.
Under the Coronavirus Aid, Relief and Economic Security Act (“CARES ACT”), Congress granted liability protection specifically to volunteer health professionals who provided medical care during the pandemic. However, Congress decided not to extend these protections to a non-volunteer health care professional, meaning that there were no blanket federal protections for health care workers amidst the health crisis.
Many states did step in and implemented provisions to protect providers and institutions from lawsuits during COVID19 patients. Illinois issued an executive order in the spring that gave health care institutions and providers immunity from civil liability for any injury or death that occurs when a facility was providing healthcare services during COVID19. New Jersey and New York also issued executive orders granting providers immunity from civil liability from acts or omissions “undertaken in good faith” during the COVID19 response.
Standard of Care vs Negligence
While states have relaxed the legal standard of malpractice there is, unfortunately, no blanket immunity for medical malpractice in the COVID era. Even with liability protections, any patient can still file a lawsuit. Immunity also does not apply to gross negligence or omissions caused by willful or criminal misconduct. This new liability standard is good news, in that it will make frivolous lawsuits less likely to hold water. For providers, blatantly egregious errors during the pandemic will need to be established for negligence lawsuits.
The overarching theme for practicing providers in the COVID-era is to make sure they are operating within the accepted standard of care at the time. For the treatment of COVID, the main question to be asked will be “were treatments rendered supported by the accepted standard of care at the time of treatment?” The most obvious example is the early use of hydroxychloroquine. Early prescription of this medication would easily fall under accepted standards, however, providers that continue to prescribe this medication now will open themselves up to negligence given many research studies highlighting hydroxychloroquine ineffectiveness and risks to patients.
For providers, this means that you cannot be sued for circumstances that are beyond your control, i.e. lack of ventilators, PPE, or medications to treat COVID patients. This extends beyond direct patient care as well. A patient that has delayed treatments due to long wait times at an emergency room or delays in receiving an ICU bed is also beyond the control of a treating provider and would not constitute a negligence lawsuit.
Documentation is Key
While it is still unclear if malpractice lawsuits will surge post-pandemic, providers can mitigate their risk through documentation, specifically highlighting their thought processes and medical-decision making, and practicing within the accepted standard of care at the time. While there is, unfortunately, no blanket federal immunity for front-line workers, charting practices, and state provisions should offer enough protection to providers who face an already difficult task during the pandemic.
Vipul Kella, MD, MBA, FACEP is a board-certified Emergency Medicine Physician, who has been practicing for 15 years. He is a Fellow, of the American College of Emergency Physician, and is licensed in Advanced Cardiac Life Support (ACLS) and Advanced Trauma Life Support (ATLS). Dr. Kella has served as a medical expert for 10 years. He has reviewed over 100 cases, and spent over 1,000 hours on case reviews and preparing reports. He is dedicated to providing expertise to clients in a variety of areas, including medical malpractice, personal injury, forensics, disability, and others.
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