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Inside Medical Liability

Third Quarter 2020




Standard of Care in Flux: Patient Safety and COVID-19

As the COVID-19 pandemic rages on, today’s headlines are filled with data, surge trends, and predictions. Speculation regarding the cause, transmission, remedy, and the status of vaccines runs rampant.



Based on the media chatter, you might think that significant progress is occurring in regard to controlling and treating COVID-19, the disease caused by the new coronavirus. Unfortunately, this is far from the truth. Like an ever-overflowing dam, the American healthcare system is overwhelmed, understaffed, and unsupported in the efforts to maintain normalcy through the pandemic, which has created stress on patient safety efforts and outcomes.

The concept behind patient safety is twofold: safety of patients in front of clinicians today and safety for future patients. To execute this appropriately, healthcare professionals and staff must employ situational awareness and intent to keep today’s patient as safe as possible during evaluation and treatment. Providers must also take time to identify and analyze trends, to review process and standards, and to address any gaps that may result in future patient harm.

This two-faceted process was challenging before COVID-19; during the pandemic, this approach has grave implications for patient safety, standards of care and medical professional liability.

Patient safety and COVID-19

In the middle of the pandemic, there are a multitude of patient care variables in play, including: Lack of staffing, testing, supplies, and equipment; provider and staff stress; and surges of highly contagious patients.

Routine tasks become complicated by the need for protective equipment, additional testing, transmission concerns, and reduced resources. Additional COVID-19 protocols must be followed, creating unique and challenging risks. Testing—when available—dominates the intake process. Patients are tested for COVID-19 before treatment and surgery, and then retested afterwards. Staff are tested too, with daily temperature checks as they enter the building. Open wounds, surgery, critical illness, even the handling of the deceased all become more acute safety threats in the COVID-19 environment.

Consequently, the focus of care shifts toward COVID-related concerns, taking attention away from other concerns such as prevention of patient falls, double-checking of medication orders and administration methods, and preventing patient harm from treatments and procedures, among others.

The shifting standard of care

Standard of care is an expectation that the care provided to each individual patient will be consistent, safe, and evidence based, utilizing the best available resources and talent. As the patient safety focus shifts during the pandemic, so does the standard of care.

Outside of a pandemic setting where patient volumes are surging, the standards of care include utilizing one mask per patient and one ventilator per patient, obtaining various specialty consultations for complex diagnoses, and preventing prioritization of care exclusive of acuity. In many COVID patient care situations, these standards of care were not met.

In the new world of a pandemic, the expectation of the patient, and perhaps even of the providers, is that anything less is not ‘good’ care. To cope with the surge of patients and all of the other consequences of dealing with a viral pandemic, steps are taken to save as many patients as possible. Medical and nursing students are moved into frontline care. Providers who previously retired are being brought back into service, even if they aren’t current on treatment or technology. Clinical trials take too long, so suspected remedies are put into use even before they are validated. Clinicians wear the same masks all day, and sometimes all week, due to limited supply. Cleaning is increased, exposing patients and staff to wet surfaces, strong chemicals, and restricted movement.

In other areas, staff are furloughed and provider offices closed, limiting both access and timely response. Risk acceptance and assumption increase, without discussion, a plan or a solution.

In a litigious healthcare environment, lawsuits are filed when patients and families feel that their expectations of ‘good care’—of the standard of care being met—are not fulfilled. The expectation of successful outcomes, cured diseases, and healed body parts does not change in a pandemic. While resources and staffing may impact care, expectations around the care by the consumers of that care remain at the same level.

Sheltering providers from liability

As the pandemic gained intensity, a number of state legislatures passed bills and governors issued executive orders granting various levels of immunity to providers and medical facilities. Their goal was to shield providers from the patients’ unmet expectations. They also hoped to encourage providers to continue to stay in stressful, restrictive environments where they are forced to make decisions that do not meet the standard of care. It is too early to know if the immunity language will prevent lawsuits. Plaintiff firms are already advertising new and creative theories of liability to circumvent the language, arguing that even in the worst of circumstances, every patient deserves the best care, resources, and outcomes. It is possible that juries, looking back at the pandemic in future years, will agree.

Where will the standard of care go from here?

Regardless of the external circumstances, a focus on patience safety, the watchdog of standards of care, is imperative. If the industry tolerates lowering of the standard of care and resource-driven treatment decisions, will those norms become the “new normal”? Only by once again committing to, and investing in, patient safety efforts will we ensure that each and every patient gets the care that they deserve. The industry must appreciate that the efforts to increase patient safety, and prevent harm, during healthcare treatment drive both patient satisfaction and outcomes.



Pamela Popp, MA, JD, DFASHRM, CPHRM, DSA, AIM is the Executive Vice President/Chief Risk Officer at Western Litigation/GB Specialty.