What Healthcare Providers Need To Know

As the COVID-19 pandemic takes hold, physicians, hospitals and other healthcare providers are inundated with sick patients, limited resources and tough choices. The last thing they should be worrying about is the threat of medical malpractice.

And yet, given the devastating impact a medical malpractice suit can have on the careers and reputations of practitioners, so many of our providers are expressing concern.

In the past two weeks, our office has been flooded with calls from physicians and providers wanting to know if they could be exposed to malpractice claims in this environment. Should they draft disclaimers for patients to sign? Should they create coronavirus-specific waivers? What’s the standard of care?

Let’s focus on that last question for a moment. “Standard of care” is one of the most misused terms in the healthcare industry and by the healthcare industry. From a legal standpoint, successful malpractice suits must prove a departure in the “standard of care,” failure to use “best judgment,” or failure to exercise “reasonable care and diligence.” But what does that mean, really?

First of all, it is completely contextual — the “standard of care” as it applies right here and right now. “Best judgment” based upon what is in front of you at the time. “Reasonable care and diligence” in light of the struggles you face with each individual patient, considering resource allocation and even pure exhaustion because of demands on time.

For example, if a patient comes into the ER with a heart attack, and the only available bed is one that was previously occupied by someone with COVID-19, the providers have a decision to make. Do we treat the heart attack patient without following sterilization procedures for the room to perfection? Or do we wait for full protocol implementation, risking the patient’s life to avoid contamination? What about first responders? Do they wait to suit up in full PPEs before initiating CPR? What if a child’s life is at stake? Does it make a difference if the patient is a 93-year-old smoker and diabetic?

These are difficult decisions, no doubt. However, the law accounts for the conditions of the day and time. If these scenarios resulted in a medical malpractice lawsuit, the jury would need to understand and consider the life-or-death choices made by the healthcare team — without the benefit of a crystal ball showing the ultimate outcome. The question we would ask a jury to consider, in essence, is “what would a reasonable healthcare provider do in this particular situation?”

The good news for providers is that they do not need to make patients sign waivers or draft disclaimers as they continue the fight against COVID-19. If you are providing patients with options at this time, it is important to document those appropriately. But emergency and life-or-death situations should be assessed medically, rather than legally. A court of law will understand that extreme situations call for extreme measures.

Right now, the healthcare providers of the world have enough problems to worry about. The threat of medical malpractice in the time of coronavirus shouldn’t be one of them. Your job is to save as many lives as you can. If and when the time comes, you can trust that Lincoln Derr will be on your side.

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Tricia Derr

Tricia Derr is the co-founder of Lincoln Derr and serves at the helm of the firm leading all practice groups through active counsel, litigation, and advising. Ms. Derr is a litigator specializing in innovative multi-media communication, practical business-minded advice, and speaking to audiences in a “real”, non-technical way.

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