Assess Legal Risk, Payer Policies to Head Off Hidden Dangers of COVID-19 Reopening

May 21, 2020 | Rivkin Rounds Staff | Legislation and Public Policy | Litigation | Private Insurers

A May 18 article in Part B News, “Assess legal risk, payer policies to head off hidden dangers of COVID-19 reopening,” discussed how medical practices should take steps to protect themselves from legal and insurance issues. Rivkin Radler’s Robert Iseman was quoted in the article, which advises medical practices that are beginning to reopen on preparations they can make to be ready for any possible unanticipated legal situations.

In addition to discussing what the law currently protects, the article mentions that some new executive orders do not cover medical malpractice for non-COVID-related issues. “What’s been done so far [in terms of immunity orders] is to support governments in response to the pandemic; if you go to get your hip replaced and something happens to you, you’d be hard-pressed to say it was related to the state managing the COVID-19 crisis,” Bob said.

The chance of legal action against healthcare providers now is relatively low, but that doesn’t mean it can’t happen in the future. Bob warned: “With the emphasis in some jurisdictions on contact tracking and tracing of COVID-19 victims and the increasing sophistication of those measures over time, potential litigants might be able to more credibly pinpoint your practice as the source of their infection.” Healthcare practices should take the necessary steps to prepare for these possible cases. The article suggests that practices keep a written record of their precautions, as well as have patients sign off and attest that they understand the risks involved in being treated there.

Healthcare providers should be thinking about their non-patients as well. Bob stated, “A lot of practices aren’t thinking about potential liability with regard to people other than patients — for example, someone who accompanies a patient. If someone came in and was able to trace an infection to the practice, the physician has to ask what policy would respond. Probably not professional liability; maybe public liability, like with a guest’s slip-and-fall.”

Patient companions aren’t the only concern. “What about a FedEx or UPS guy?” Bob asked. “You want to make sure your public liability policy covers it.” The policy may cover normal accidents, but infection is different and new. “The standard for public liability claims is that you only have to establish them by a ‘preponderance of evidence’ — that is, if you’re a football fan, you just have to get past the 50-yard-line, not past the goal line,” Bob said.

The best precaution practices can take regarding these uncertainties is to check their policies and have them rewritten, if necessary. This is just one other way to stay safe and be ready for possible future issues.

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