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What are the legal risks of COVID-19?

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Communicating guidelines and requirements to both patients and staff is a critical first step for protecting your independent practice during the COVID-19 pandemic, both in terms of safety and legal risks. For example, the Centers for Disease Control and Prevention (CDC) has recommended that everyone wear masks but your patients (and even some staff) may be resistant to wearing them.

Protect yourself and your practice by providing advance notice regarding your mask policy as well as any other pandemic-related guidelines or restrictions. Include the requirements in your intake documents and processes, post them inside and outside your practice, and enforce them uniformly while remaining legally compliant.

The question of legal risks is a major concern for you and your patients. The main goal is everyone’s health and safety. Threats of frivolous lawsuits should not be enough to pressure you into exposing your staff or patients. Document everything, particularly if a patient refuses to comply with your practice’s requirements.

Elation Health has developed a COVID-19 Resource Guide, to help you stay on top of the latest developments while remaining focused on your patients’ health and well-being. Learn more here.

Other questions regarding COVID-19 legal risks focus on reporting requirements. Legal experts writing in the National Law Review say that a number of states have included COVID-19 on their list of reportable communicable diseases. California, for example, requires:

… immediate telephonic reporting by health care providers knowing of, or in attendance on a case or suspected case of COVID-19. For patients, the medical group must make mandated reports to federal, state, and local public health authorities. For employees, however, unless the employer is the healthcare provider receiving the positive test result, the employer does not have a separate obligation to make a mandated report.

For employees testing positive for COVID-19 in California, however, the employer must record those cases in its OSHA 300 log per OSHA’s Injury and Illness Recordkeeping and Reporting Requirements, if the case is confirmed to be COVID-19, is “work-related” (as defined by 29 C.F.R. § 1904.5), and involves one or more of the general recording criteria set forth in29 C.F.R. § 1904.7, such as time away from work or medical treatment.

In addition, medical groups in California must comply with the state’s Aerosol Transmissible Diseases (“ATD”) standard to protect employees from diseases and pathogens transmitted by aerosols. The ATD standard requires medical groups to protect employees through effective:

  • Written ATD exposure control plan and procedures
  • Training
  • Engineering and work practice controls
  • PPE
  • Medical services
  • Laboratory operation requirements.

If one of your clinical or administrative staff tests positive for COVID-19, you cannot legally reveal that employee’s medical diagnosis. You should, however, generally communicate the exposure or potential exposure without providing information that would identify the individual employee.

Other concerns about COVID-19 legal risks may involve your potential lack of resources for protecting staff and patients. Sean P. Byrne, JD, a malpractice defense lawyer, states that “In medical liability cases, the test is always: Did you comply with the standard of care? So did you act like a reasonably prudent provider would act under the same or similar circumstances?”

Byrne points out that a number of state laws protect you from being sued for simple negligence for COVID-19 related claims. He states that “You can’t be sued for COVID-19 related claims that are caused by a lack of resources. And resources can mean PPE, it can mean staffing, it can mean ICU beds.” He adds that “Ultimately, though, the test is usually going to be: Did you act reasonably? I think it’s advisable to include some language about COVID-19 in your discussions with your patients and in your documentation ….”

The American Medical Association (AMA) and more than 130 state, specialty, and national medical associations are asking Congress to protect physicians and other health professionals from medical liability lawsuits where health care services are provided or withheld in situations that may be beyond the control of physicians or their practices. For example, protection would apply in situations in which a physician was following government guidelines or lacked resources due to COVID-19. The protections would extend to those who provide care in good faith during the public health emergency and in a reasonable time period, such as 60 days, after the emergency declaration ends.