Updated April 2, 2020: During the COVID-19 pandemic, with patients and practices postponing care for nonemergent situations, many physicians are wondering how to temporarily reduce their hours or even close their practices—while minimizing risks. Practices are wise to proceed carefully: Even if no patient suffers an adverse event due to lack of care, an administrative action against the practice—for failing to properly notify patients of the closure, for example—could bring a medical board action with negative consequences such as significant sanctions and/or loss of hospital admitting privileges.
The Doctors Company is committed to supporting its members and to providing actionable information during this unprecedented time. To offer guidance for adjusting or suspending patient care while minimizing legal and malpractice risks—especially important today—we have identified four main categories of physician/practice response to COVID-19, in descending order of patient contact.
Each response comes with its own advantages and obligations, which we outline below.
Practices Offering Care via Telehealth
Many practices can provide continuity of care while lowering risk of COVID-19 infection by integrating telehealth into daily operations. Telehealth does not have to be high-tech health: It is anything other than an in-person visit. Phone triage, for example, can help establish who needs to be seen, in person and urgently, and who can wait or be referred. Moreover, during this emergency, the Health and Human Services Office for Civil Rights will not prosecute physicians who make a good-faith effort to assist patients through certain familiar, non-HIPAA-compliant communications technologies, such as FaceTime and Skype.
Practices Limiting Hours or Limiting Types of Care
Some practices are choosing to limit their hours in order to be available to patients for more urgent needs, while postponing more routine visits. Limited hours may mean limits on types of care given or procedures performed. For example, a physician may want to postpone first-time patient encounters, while remaining available for follow-up care on certain prior patient encounters.
If your practice will operate on limited hours for a period of time, contact your insurer—it may be appropriate to lower your medical professional liability premium to reflect an altered risk profile during the time of limited hours and/or scope of practice, reducing cost burden while maintaining coverage.
Practices Closing but Taking Patient Phone Calls
Some practices are closing their doors and temporarily suspending in-person visits altogether, using an outgoing voicemail message to offer information regarding how patients can reach the physician with urgent questions or in an emergency. Although the physician is not providing routine care, the physician is still interacting with patients, and therefore still requires medical professional liability coverage.
If your practice chooses this option, contact your insurer. The level of coverage could be altered during the time of closure—and the premium lowered—while maintaining coverage for phone consultations, phone triage, and/or referrals.
Physicians Having No Contact with Patients
Physicians having absolutely no contact with patients during a practice closure are the only category of physicians who should consider suspending their medical professional liability coverage. For example, The Doctors Company will allow physicians who will have no contact with patients for between 30 days and one year to suspend their coverage and their premiums during that time. In this case, there is no adverse retroactive effect upon the level of coverage before the suspension, and the physician can pick up again at their full level of coverage after the suspension.
Physicians should follow guidance on “Closing or Relocating a Healthcare Practice,” while adapting this guidance in common-sense ways to the COVID-19 pandemic: For instance, notifications to patients should indicate that the closure is temporary vs. permanent.
Notification duties extend beyond patients to referring colleagues, third-party vendors and suppliers, professional associations, government agencies, and more. Notifications to patients must be documented in their records; notification must also be given on the practice’s website, its outgoing phone communications, and elsewhere.
Practices must also make provision for patients and/or their new/temporary providers to access their medical records, and be mindful of laws governing medical records retention.
What About Patients Who Need Ongoing Care?
When considering even a temporary practice closure, the question of patient abandonment is bound to arise. While the Emergency Medical Treatment and Labor Act (EMTALA), which obligates an emergency department (ED) to treat anyone who walks through their door, makes it less likely that a patient could bring a successful suit for patient abandonment, physicians want to provide continuity of care for their patients—and no ED is prepared to handle the influx of patients that would arrive if local physicians closed practices and made blanket referrals to the ED.
Some patients do have a more anticipated need for continuity of care than others. To name two classic examples, physicians treating patients who are approaching three days post-op or 42 weeks pregnant should not suddenly cease communication with those patients.
During this pandemic as in every other situation, the judgment of the individual clinician remains essential, as do referring relationships with colleagues. If continuing communication with certain patients via telehealth appointment, or retaining availability for emergency calls, does not make sense for your practice, consider referring patients with more anticipated needs to colleagues at larger health systems.
Communicate Practice Changes and Trust Clinical Judgment
The core message is that physicians and practices should speak with their insurer regarding changes in their practice hours and/or scope of practice, knowing that a temporarily lower risk profile may yield a temporarily lower premium. This reduces the cost burden on the practice and allows them to continue serving their patients as they see best during this crisis, to everyone’s benefit.
Optimum patient care, especially during periods of crisis like we are currently experiencing, requires accurate and prompt communication. Timely updates on the practice webpage can help succinctly educate patients on the status of the pandemic as it relates specifically to your office; what recommendations by federal, state, and local authorities have been implemented already by the physicians to help ensure continuity of care; any limitations to or changes in daily operations, including scheduling and available services; and the extent to which the office may be available for inquiries pending the resolution of the pandemic.
Physicians should remember to trust their own medical decision making regarding which patient interactions must be ongoing, even in the face of the COVID-19 pandemic, and which can be deferred.