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Inside Medical Liability

First Quarter 2021

 

 

INTERNATIONAL PERSPECTIVE

French Coordinating Doctors Face Potential Liability During Pandemic

COVID-related deaths and illnesses in French nursing homes raise questions

 

Editor’s Note: In a recent interview in The Journal of the Coordinating Doctor, Germain Decroix, an attorney with Mutuelle d’Assurances du Corps de Sante Francias (MACSF), a medical professional liability mutual insurance provider, discussed the responsibilities of the coordinating doctor in établissement d'hébergement pour personnes âgées dépendantes (EHPAD), residential care homes for the elderly, during the COVID-19 pandemic.

In French nursing homes, coordinating doctors, who must have training in geriatrics, are responsible for developing care plans, offering opinions on admitted patients, coordinating caregiver teams, ensuring that gerontological best practices are employed, and participating in assessing quality of care.1,2 This article is translated from the original version that appeared in The Journal of the Coordinating Doctor.

Q: What kind of medical professional liability might coordinating doctors in French care facilities face as a result of their actions during the pandemic?

A: The families of residents who died of COVID in EHPAD may blame the coordinating doctor for insufficient general resources implemented to prevent the spread of infection within the establishment (confinement, special precautions in care, toilets, meals, staff test, etc.). Other criticisms can be formulated around the care of a particular resident (delay in diagnosis, treatment and monitoring implemented, delay in transfer to hospital, etc.). In terms of compensation, the main question that will arise is the following: "Does the contamination of an EHPAD resident by COVID constitute a nosocomial infection, that is to say associated with care?" The answer to this question is fraught with consequences because the liability regime in the event of an infection associated with treatment is specific and favorable to victims, with full liability of the establishment or the National Accident Compensation Office (ONIAM), according to the extent of the damage. The response will have a significant economic impact on EHPAD or ONIAM insurers if there are many claims for compensation, which is possible given the number of patients.

Q: Throughout the crisis, coordinating doctors have had to deal with all kinds of constraints: administrative slowness, lack of personal protective equipment, contradictory recommendations, forcing them to act in difficult situations. How to take this situation into account in the event of a dispute?

A: Let us not forget that the coordinating doctor is, like other doctors, bound by a simple obligation of means. We cannot ask the physician to invent means that are not available. It is, therefore, very important that the coordinating doctor provide proof of the steps that were taken in order to obtain the necessary human and material resources. We can hope that, when assessing the responsibility of the coordinating physicians, the judges will take into account the exceptional situation in which doctors found themselves. As for the nature of the recommendations, it could be mentioned that they are both temporary and evolving over time. In addition, the plurality of sources and their sometimes contradictory nature makes us think about their legitimacy. Do they really constitute the "actual data of science" upon which judges rely? It will be for the experts to say.

Q: Do the coordinating physicians have any responsibilities towards other nursing staff if the latter have been infected?

A: It is the employer who is responsible for the safety of the employees at work. Coordinating doctors are not the employer. The director of the EHPAD must ensure that the employees are not in danger because of their professional work and, therefore, protect the health of his employees. Employers are supported in this by the occupational physician (generally via an inter-company service) and not by the coordinating physician. It is important that everyone is accountable for his or her responsibilities, even if, in practice, the coordinating doctor can be questioned by the director about the staff. On the other hand, where the coordinating doctor could be criticized is about the drafting or adaptation of treatment protocols during the pandemic. He could be criticized for not having increased the protective measures (which affect the staff), for not having decided to test all residents (likely to infect employees) or to postpone certain care that could mean patients becoming infected during non-COVID hospital treatment. I would also like to discuss the issue of staff vaccination, which is the responsibility of the employer, advised by the occupational physician. [An occupational physician works for a facility and specializes in preventing, diagnosing, and treating injuries, illnesses, and harmful exposures in the workplace.] When we have the vaccination against COVID, will we impose it on all EHPAD staff including the coordinating doctor and external workers? At the moment, no one knows. Beyond that, it is a true ethical duty of caregivers towards the people they care for, as it is for influenza vaccination.

Q: Are the coordinating physicians likely to sue local or national authorities for their lack of action during the crisis?

A: A significant number of lawsuits have already been brought against the authorities, in particular by organizations representing caregivers. Serious inadequacies are cited in the management of the crisis, both at the local and national levels. The Paris Public Prosecutor's Office has launched a large-scale investigation on the subject, which may take some time due to the multiple aspects and the interests at stake, which are not always very clear. Let justice take its course and trust it. These highly publicized procedures are often not well understood due to their technical aspects. They do not necessarily lead to designating the long-awaited responsible, as the case of contaminated blood has shown, since it would be necessary to find a responsible for all our ills. The coordinating physicians can obviously initiate this kind of lawsuit but should carefully consider the consequences before proceeding. A negative decision can be contrary to the interest of the profession as a whole and, in general, we should ask whether or not it is up to the judges to decide in this kind of situation.

Q: Should this crisis, which might not be the last of its kind, lead us to rethink the chain of responsibilities in care facilities?

A: Each one’s responsibility must be analyzed when looking at management of the crisis in the EHPAD to be sure that there are no gaps. For example, the unavailability of attending physicians must now be anticipated. The same is true for EHPAD staff, in particular for the number of nurses compared to the number of residents, but also for the possibility of calling on emergency personnel. In addition, we are awaiting the promulgation of texts redefining the regulatory competencies of nursing assistants, the precedents dating back to 2005. These new skills allowed nursing assistants will permit them to perform acts previously assigned to nurses only, which will free up time for the latter, for the benefit of residents. This is also a new way of working, but only under the condition that the professionals concerned are properly trained. During the crisis, a number of exceptional measures were taken, such as delegating tasks and relaxing the conditions for using telemedicine, which allowed us to review our organizations and our ways of working. I am convinced that we can learn positive lessons in the future to improve the care of nursing home residents.

References

1. “Achieving Quality Long-term Care in Residential Establishments in France,” World Health Organization, Oct. 18, 2010, https://apps.who.int/iris/bitstream/handle/ 10665/274628/9789241514033-eng.pdf?ua=1.
2. “Strategy for Residents of Nursing Homes Facing the SARS-COV2 Epidemic in France,” Nursing Home Research International Conference, Dec. 15, 2020, https://www.jnursinghomeresearch.com/2317-strategyfor-residents-of-nursing-homes-facing-the-sars-cov2- epidemic-in-france.html.