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Top 7 Insurance and Legal Questions for Resuming Medical Practice During COVID-19

Todd Zeiter, Senior Vice President, National Underwriting

Updated July 15, 2020: As a company founded and led by physicians, we have unique insight into medical liability and the factors that lead to lawsuits against doctors. And in these unprecedented times, we are committed to providing information and support so you can focus on practicing medicine.

We’ve heard from physicians that they are concerned about the risks involved in reopening their practices, resuming elective procedures, or otherwise resuming something closer to their usual patient interactions. In response to these concerns, we’re providing answers to common insurance coverage questions to help physicians anticipate issues before they become problems.

First and foremost, we urge physicians to check daily for updates from the Centers for Disease Control and Prevention (CDC), local medical societies, and local health departments. We also urge physicians to have a plan for how to communicate changes to staff and to document that they are doing so—if only by jotting quick notes in an electronic calendar.

The following are answers to the top questions from our members and doctors across the country:

If an employee of yours makes the claim that you failed to provide a safe work environment—for instance, that you did not provide personal protective equipment (PPE), and they subsequently contracted COVID-19—that claim would fall outside of your medical professional liability coverage. In those instances, your agent can advise you regarding whether the claim is covered by your employment practices liability insurance.

If you are covered by The Doctors Company, the short answer is yes. The longer answer involves separating what the physician can’t control from what they can: Of course, you cannot guarantee that any given patient will not contract COVID-19. However, you can perform daily reviews of any new CDC guidelines, train your staff, and maintain infection control standards—and document that you are doing those things. In case of a lawsuit, your good-faith effort to maintain the standard of care as it evolves is in your favor.

We will rely on your professional judgment relative to your practice and your patients’ best interests. That said, as you evaluate your patients’ needs against your local backdrop of infection risks and legal changes, realize that mandates are stronger than recommendations. We encourage you to follow all state mandates, laws, bulletins, and orders.

For example, if a state has opened the door for elective procedures but not cosmetic procedures, and a physician is performing cosmetic procedures, this makes it almost impossible for us to successfully defend that physician in court because they have knowingly violated a state requirement or the law. Therefore, reduce liability by following your local health authority’s recommendations and abiding by the local current standard of care.

Many practices have experienced a significant reduction in patient encounters and therefore revenue. Talk to your agent or underwriter about adjusting your service. The Doctors Company offers two types of coverage adjustments: reduction in time (full-time to part-time practice) and/or reduction in the nature of procedures performed (surgical to office-based practice). Either or both would reduce premium. In case of temporary practice closure, we can temporarily suspend coverage.

Remember to work with your agent or underwriter to reinstate your customary level of coverage upon reopening or resuming your customary level of patient interaction.

Check with your agent or underwriter. If you're being requested to provide services outside of the scope of your specialty such as assisting with triage in an emergency department (ED), whether being remunerated or not, your coverage with The Doctors Company will not be impacted. We will rely upon your professional judgment. If you have the necessary training and are comfortable performing in that particular capacity, your coverage will follow you.

The same holds true for your nonphysician staff when acting under your scope and direction: If they are requested or volunteer to offer services outside of your practice insured with us, coverage under your policy will follow them.

If, however, a nonphysician staff member is stepping outside of your scope and direction, they should seek coverage from the facility or practice with whom they're offering services.

The return to offering procedures will not be like flipping a switch; it will be a gradual process. Use your best judgment to determine whether you have the capability to safely perform the procedure based on your location, patient population, type of procedure, your assessment of the degree of increased risk, and your evaluation of the risks and benefits to the patient.

Have a heart-to-heart with the patient, a true informed consent process that accounts for the increased risks during COVID-19, not just a form for the patient to sign—and document those conversations. No one knows what things will look like in a year or two, so documenting clinical reasoning based on conditions right now is critical.

If you are a member of The Doctors Company, you can count on aggressive, effective defense of your claim. We do not cast doubt on our members’ clinical judgment. However, we strongly recommend that you document your clinical reasoning in case of a suit.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.


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