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October 23, 2020

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  • Senate Leadership Unveils COVID-19 Legal Reform Proposal
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  • Bipartisan Congressional Letter in Support of H.R. 7059

Inside Medical Liability

Third Quarter 2020

 

 

Cover Story

Charting the New COVID-19 MPL Landscape

What the next normal looks like from the legal, operations, and medical standpoints

By AMY BUTTELL

 

As new COVID-19 outbreaks continue to impact many countries, a next normal is taking shape where insurers and practitioners apply the lessons they’ve learned and prepare for more unknowns. If there’s anything that the coronavirus is teaching us, it’s that there are no certainties. Many regions untouched by the first outbreaks in March and April saw catastrophic spreading of cases in the summer, while regions pummeled by the virus early on later emerged with low transmission levels and rapidly emptying intensive care units.

While it may seem that there’s no cause for optimism in the midst of a global pandemic with few effective treatments and no cures, that’s simply not the case. In such an uncertain environment, experience and information are two of the few bulwarks against chaos.

In this article, we focus on managing insurance and clinical environments as effectively as possible within the given landscape from the medical, legal, and operations standpoints both in the U.S. and internationally. Four experts have helped us explore our next normal, sharing best practices and guidance designed to help insurers and clinicians navigate their specific situations as efficiently and effectively as possible:

  • Robert Wachter, MD, author of The Digital Doctor and chair, Department of Medicine, University of California, San Francisco (UCSF)
  • Erin Brennan Bagley, JD, vice president and general counsel, Coverys
  • Lori Rosen Semlies, JD, co-chair, medical malpractice and healthcare practice and partner, Wilson Elser Moskowitz Edelman & Dicker LLP
  • Lisa Calder, MD, CEO of the Canadian Medical Protective Association (CMPA); affiliate investigator, Ottawa Hospital Research Institute; associate professor, University of Ottawa

During the past six months, there have been changes within the clinical and medical professional liability (MPL) environment that no one could have predicted. Jurisdictions across the U.S. have enacted immunity provisions for clinicians relating to COVID-19, while the use of digital healthcare has skyrocketed. In addition, global scientific collaboration serves as a bright spot, as scientists and researchers around the world share challenges, findings, and treatments in search of better outcomes.

“One of the biggest contributions of digital healthcare in COVID-19 has been the amount of information that is available about the state of the pandemic, data that we can present in ways that are interesting, useful, and really well visualized,” Dr. Wachter said. “Clearly, we’ve gotten much better at measuring cases and outcomes, and parsing that data in varying ways.”

New frontiers in digital medicine

While digital medicine was gaining ground pre-pandemic, the eyepopping surge in adoption of digital medicine far exceeded the projections of its most ardent advocates, including Dr. Wachter. At UCSF Medical Center, telemedicine accounted for 70% of all patient interactions within the system by April, up from 1% in January. Similarly, other facilities, including New York University Langone Health, experienced a surge in telemedicine in which virtual urgent care visits grew by 683% and non-urgent virtual care visits grew by 4,345% between March 2 and April 14, 2020.1

“When you look at the lasting impacts of the pandemic, the fact that it has really catalyzed a massive uptick in telemedicine, particularly, is a really important positive change for the healthcare system,” Dr. Wachter related. “The doctors who resisted it forever mostly like it. The patients who sometimes resisted and some who just didn’t have access mostly like it. Our patient satisfaction rates in visits delivered through telemedicine are higher than our in-person visits.”

The universe of digital medicine is expansive. Not only is there the potential for video, phone, email, and text interactions, but there are also infinite ways that medical data can be transmitted from patients to practitioners and healthcare facilities through digital devices. Digital medicine can also, to a degree, compensate for the consolidation that has occurred, and that has been accelerated by the pandemic.

“How far consolidation goes partly depends on the boundaries of digital healthcare,” Dr. Wachter said. “When we’re delivering more care by digital means, the pressure to have a community hospital in every county is less, just like when you have Amazon you don’t need a store in your neighborhood. However, that only goes so far—telemedicine can’t compensate for having to drive two hours to deliver a baby or have surgery.” (For more on digital healthcare, see below.)

Opportunities for operational excellence

From the operational perspective, COVID-19 creates both challenges and opportunities, according to Bagley. In a constantly changing environment, with the pandemic surging in different parts of the country, both clinicians and insurers must maintain a singular focus on patient safety and risk management. That’s not easy when dealing with a highly infectious disease with shifting standards of care and with treatment, research, and jurisdictional mandates that are constantly changing.

Innovation in both insurance and clinical settings can help shift the paradigm. Up until 2020, flexibility wasn’t a major feature of the U.S. healthcare system. However, the shift to digital treatment has moved the needle in the right direction.

“One positive development we’ve seen is a movement toward value-based healthcare now that the Centers for Medicare and Medicaid agreed to reimburse digital healthcare visits at the same rate as in-person visits,” said Bagley. “Shifting to a value-based model will help make needed systemic change in the healthcare system.”

A healthcare model that reimburses for outcomes rather than services offers significant benefits for patients, clinicians, and insurers. Replacing unnecessary in-person visits with digital care has the potential to take some costs out of the system and divert money to places where it can be better used, she noted.

Insurers have the opportunity to provide stability to clinicians and their patients during the shifting surges of the pandemic. By helping clinicians understand complex issues like rapidly evolving COVID-19 immunity provisions, the best and most appropriate uses of telemedicine, and how to reopen a clinical office that has been closed due to pandemic restrictions, insurers have been able to make a big difference in the lives of clinicians and their patients, Bagley noted.

Developments in the legal environment during COVID-19

Because of the rapid spread of COVID-19 and its newness, many aspects of the MPL legal environment are unsettled, according to Semlies. Various immunity statues and executive orders protect clinicians treating COVID-19 patients, but that doesn’t mean that the plaintiff ’s bar won’t bring any suits. In addition, the pandemic has led to court closings across the country, which means that trials for pre-COVID litigation aren’t likely to occur until January at the earliest.

While clinicians benefit from the immunity statues that have been passed on the federal and state levels, challenges have been created by pandemic surges. For example, Semlies said, in New York, Governor Andrew Cuomo signed an executive order on March 25 requiring nursing homes to readmit patients with COVID-19 from hospitals to preserve hospital capacity.3 Although the order was reversed on May 10, this situation led to numerous lawsuits.

In terms of the courts, while judges are hearing certain matters virtually, few civil trials have occurred. Because it takes years for MPL cases to make their way through the court system, upcoming trials are based on matters that occurred as many as five years ago. “Because of the current environment, not only is it difficult to provide a consistent civil trial experience, it’s also a challenge to get all the necessary participants in one place because of fears of contagion,” Semlies said.

The roadblocks to bringing cases to trial tend to favor the defense bar, at least in some circumstances. That’s because plaintiff ’s attorneys don’t get paid until a case is resolved, either in settlement or at trial. “This situation can offer an opportunity for defendants to obtain a settlement that is more acceptable to them than it might have been in the past,” she said. “That’s because the urgency provided by going to trial is not there right now. Also, plaintiffs and their attorneys have to make a business decision about whether it is better to wait to go to trial at some point in the future or settle now.”

International perspective on COVID-19

While Canada initially experienced a surge similar to the U.S. and other countries, strict social distancing, lockdowns, and mask rules imposed early in the pandemic have significantly flattened the curve.

Dr. Wachter Explores Digital Medicine Frontiers

A rapid increase in the amount of digital healthcare delivered during the pandemic has the potential to transform healthcare in the post-pandemic world. From reducing inequality to continuous at-home monitoring of patient health, digital healthcare changes are leading us into a new reality for both patients and clinicians.

Robert Wachter, MD, author of The Digital Doctor and six other books, is also a researcher who has published more than 250 articles. A frequent contributor to the Wall Street Journal and the New York Times, Wachter is credited with coining the term “hospitalist” in 1996. He is viewed as the academic leader of the hospitalist specialty, which is the fastest-growing specialty in the United States.

During COVID-19, troubling disparities have been revealed about long-standing inequalities in healthcare. Not only do African Americans and Hispanics become infected with COVID-19 at higher rates than Caucasians, they also have poorer health to begin with. Those comorbidities, which include obesity, diabetes, hypertension, and coronary artery disease, lead to poorer outcomes, including higher hospitalization and death rates.1

Wachter noted that increased data collection due to the rise of digital healthcare has substantiated these inequalities, which aren’t limited to comorbidities. Minorities also tend to live in crowded conditions, lack health insurance and have poorer access to healthcare in general.

Now that we, as a society, are aware of these inequalities, pressure to deal with them in a substantive way is rising, he noted. Evidence of these inequalities could be used by the plaintiff ’s bar in medical professional liability cases, he continued. “For example, if a Black or Latino person has a bad outcome and a hospital has failed to address documented worse outcomes for certain patient groups, it wouldn’t shock me if that became one of the points raised by an attorney in a malpractice case,” he noted.

“Inequality in healthcare is a large issue within the public discourse and I think it will play out in a lot of ways,” he continued. “I think digital has the capacity to make inequalities more obvious and more vivid while also acting as part of the solution.”

For example, continuous monitoring of individuals in their home environment could be achieved using a variety of devices that deliver healthcare information seamlessly to clinicians. “It might be information about your pulse oxygen level coming from your digital watch or your blood sugar from a digital glucose monitor. Or it might come from a device in your toilet or a survey you fill out on your iPad that gets sent to your doctor every morning—there are multiple ways to quickly and easily deliver healthcare information,” he said.

While the delivery end of this puzzle is starting to be solved, with more medically oriented devices and apps coming on the market, figuring out how to manage all of that data is a major challenge. “The ability to monitor you and your vital signs, and other parameters, nearly continuously is very exciting but also massively overwhelming for a healthcare system that has no ability to manage that data,” he stated.

The essence of sound data analytics is getting the right data to the right person at the right time. Without the ability to direct data and appropriately categorize it, such data may create a false sense of security for both patients and clinicians. “It also creates liability concerns because while it’s unlikely that I would miss a problem with your blood pressure if I saw you in an office visit, I might miss that same red flag if it came in a message on a Tuesday night into a healthcare system’s data feed,” he said. “There would have to be some kind of air traffic control system to collect, monitor, and alert clinicians as to outliers.”

Reference

1. Andis Robeznieks. How COVID-19’s egregious impact on minorities can trigger change. American Medical Association, May 12, 2020 https://www.ama-assn.org/delivering-care/healthequity/how-covid-19-s-egregious-impact-minoritiescan-trigger-change.

 

 

In fact, the Canadian government banned the Toronto Blue Jays from playing international baseball games in mid-July due to the risk of the higher infection rates from America.4

Dr. Calder, new CEO of the CMPA, notes that initially MPL cases involving physicians declined in Canada in the pandemic. However, cases are beginning to rise. “We think that cases will start to increase more around the restrictions in the healthcare system and the subsequent impact on patients, rather than the management of COVID itself,” she said.

As in the United States, Canada has seen a large increase in the practice of digital medicine. “I’m hearing from our physicians that their patients like the convenience, the access, and the efficiency,” Dr. Calder noted. “The challenges involved in digital healthcare involve ensuring that there’s clarity on the standards of care involved in virtual care, particularly in assessments, where you need to appropriately select patients who don’t require a physical exam.”

With a flattening curve, there’s an opportunity for Canadian clinicians to catch up on postponed elective procedures as well as to see more patients in person. “When the immediate urgency of lockdowns passes, it’s important to create standardized protocols as well as apply judgment in deciding which patients should be seen in person and which can be attended to virtually,” she said.

Moving forward

As we move forward into yet another season with COVID-19, experts agree that it will be critical to work together to ensure that clinicians have the most up-to-date information to serve their patients with the highest standard of care possible. While researchers work as quickly as possible to develop vaccines and other treatments to relieve the suffering of COVID patients, the MPL industry will continue to take the lessons learned in order to improve patient safety and to protect the healthcare professionals working so diligently to provide care for all patients.

 

Semlies Offers COVID-19 MPL Recommendations

There’s no doubt that COVID-19 represents a huge challenge for clinicians and their medical professional liability (MPL) insurers. Lori Semlies, co-chair of Wilson Elser Moskowitz Edelman & Dicker LLP’s Medical Malpractice and Health Care Practice, noted that the pandemic has deeply affected two areas of MPL litigation: moving ahead with liability suits filed years ago and new cases that are being brought against medical facilities around COVID-19 issues.

COVID-19 cases

Fortunately, the federal and state governments have issued immunity protections designed to safeguard providers against lawsuits. However, MPL lawsuits are already being filed and will continue to be filed as long as the pandemic rages, according to Semlies.

Immunity statutes and other issues create a favorable environment for MPL defense, she noted. However, it’s important for clinical organizations and clinicians to take certain steps to safeguard themselves against claims.

“More than 34 states have enacted immunity statutes,” she noted. “There are different aspects to those statutes—for instance, some measures might protect paramedics, while others don’t. But the benefits of the statues apply to cases outside of those states because COVID-19 is so new that there is no standard of care. In the months since the pandemic arrived, we still don’t know how it is transmitted, let alone how to treat it. That makes it difficult for plaintiffs to argue that, for example, a provider failed to protect them from infection.

How can a provider protect anyone against infection if we still don’t know how it’s transmitted?” How might the plaintiff ’s bar attack COVID-19 immunity protections granted by various jurisdictions? Potential negligence allegations they might pursue, include these:

  • Lack of overall preparedness for the pandemic
  • Lack of capacity for care, including lack of beds in ICUs
  • Lack of personal protective equipment (PPE) for clinicians and staff, leading to injury/infection to patients
  • Lack of sufficient equipment to treat patients, including ventilators and COVID-19 tests
  • Inadequate staffing and inadequately trained staff
  • Inadequate infection control
  • Delayed elective surgeries and procedures1

However, while these issues provide ample fodder for the plaintiff ’s bar, they also provide a defense for beleaguered clinicians and clinical organizations.

“As long as an organization can document that they made a good faith effort to procure PPE, for example, it will be very difficult for a plaintiff to win a suit against them,” Semlies said. “That’s where the procurement department should save all their records of emails, orders, and communications back and forth with PPE providers to document their efforts. Also, companies should keep records of what supplies were received, when orders were placed, how they were distributed as well as what was not delivered.”

It’s unlikely that individual clinicians in small practices will be sued, she said, because plaintiff ’s lawyers know that large hospital systems and nursing home chains are the ones with deeper pockets. These organizations should document their various efforts along with noting federal, state, and local orders and guidelines that dictated many of their actions.

Pre-COVID cases

The COVID-led closure of physical courtrooms means that cases that are ready for trial—pre-COVID cases—may take months or years to get in front of a jury. This has a variety of implications for cases that are moving toward trial, Semlies said.

Although there won’t be any civil trials for months in many jurisdictions, judges are still pushing attorneys to work through pretrial matters, such as depositions. In this situation, Semlies said, social distancing requirements and court closures are a detriment in building a solid case for the defense. “It’s important to prepare a witness in person and to be present with that witness when you go through a deposition to have all the documents right at hand,” she said. “But currently, we can’t do that.”

Reference

1. Paul Greve JD RPLU, Richard Henderson and Lori Semlies, “COVID-19 and Its Impact on Medical Professional Liability: First Impressions. PLUS Journal, Vol. XXXIX, Second Quarter 2020. https://www.wilsonelser.com/writable/files/Attorney_Articles_PDFs/2020_q2_journal_final.pdf. Accessed Aug. 9, 2020.
 

 

   
 


Amy Buttell is the editor of Inside Medical Liability.