COVID News from The Mutual

The Mutual has received several requests from providers seeking guidance on how to protect themselves from lawsuits related to the care provided during the COVID pandemic.

First, we are so proud to be associated with you. We have seen you risking your health to care for all during the pandemic. You are heroes. Unfortunately, despite this, there is no magic language, practice, or immunity that will definitively keep you out of a lawsuit. This is America and people will sue anyone for almost any reason. What we will share are some tips that will hopefully reduce that chance – and make a chart more defensible if a lawsuit does occur.

Some background – I participate in a workgroup with professional liability insurance CMOs from across the county. While no one in Vituity has been sued to date, there are lawsuits within the other groups. At this point the target is not so much providers, but the facilities. The question is: In two or three years when the pandemic is behind us, will the public (jury) still think of you as heroes?

The Federal Immunities (PREP Act) and State Executive Orders may give us some protections, but plaintiff attorneys will challenge the protections.

So, what can you as a provider do? Document the situation. I've seen hospitals that have COVID language templates – but these are focused on the hospital. For you – in your MDM portion of the chart, document the conditions you are facing. Some sample language we recommend…

"I have discussed this treatment plan with (patient/decision maker's name) including treatment options are limited by reduced resources available due to the COVID pandemic. (patient/decision maker's name) has the capacity to understand and follow the recommendations provided."

Or

"In my judgement, I am treating this patient in the best way possible considering the reduced resources available due to the COVID pandemic. (patient/decision maker's name) has the capacity to understand and follow the recommendations provided."

There are other template examples – some of which are more detailed. But, more important than a lengthy template is the inclusion of patient specific information (just a sentence or two) about the specifics of the case. Use objective language that avoids blame when describing even the worst treatment situations. Years from now, if your care is questioned by a plaintiff, it will help to know which specific exam, admission, referral, or test was clinically warranted but could not be performed/obtained due to COVID surge management protocols.

A few other items

• Some of you are being asked to staff areas of the hospital you are not credentialed or fully trained for. Ethically, we must help where we are needed. It is important to work with your directors to ensure the hospital is contracted with Vituity for these crisis staffing arrangements.
• When faced with decisions of rationing of care, please do not make those decisions on your own. These decisions should be based on protocols established in advance by the hospital Ethics or Triage Committees, or Health Department, not individual providers.
• There is a dynamically changing standard of care, and Vituity and other sources are prepared to give you the most up to date information.

In the end, use what you can from this memo. Continue to give the best care you can. If we insure you, we will be there to vigorously defend you. If your Vituity site is not insured by us, we still will provide any guidance we can.

This brief article will hopefully give you some useful information – and we are ready to expand on our answers as needed. Just ask. We are ready to help.

Please stay safe!