April 14, 2020

Healthcare Legal Issues Regarding COVID-19 and Recent Developments in Healthcare Law

As the world attempts to navigate the mounting complications related to the Coronavirus Disease–2019 (COVID-19), we address important legal considerations that the healthcare industry will face in the wake of this pandemic.  Touching every aspect of life, we can expect this virus, in turn, to touch every aspect of the healthcare industry.   As a courtesy, we provide an update on recent developments in healthcare law.  Additionally, we provide an overview of salient healthcare issues to bear in mind as we move forward in potentially uncharted territory due to COVID-19. We are closely monitoring the impact of this devastating virus and are here to guide you through legal issues as they may arise.   

I.  IMPACT OF COVID-19 ON HEALTHCARE INDUSTRY

COVID-19 is fast doing harm in the United States and around the world.    The healthcare industry and the nation are trying to get their hands around this pandemic with little knowledge about how to contain and cure it.  Vigilance is key.  The public and healthcare providers must stay informed, and in case of exhibiting symptoms, get tested and isolate until the results are known.  The CDC has been an excellent source of information and State and City governments are now quick to take steps to curb further outbreak to the extent possible. The CDC has had infection control guidance in place, but has now developed interim guidance for the healthcare profession for infection control in evaluating asymptomatic individuals as well as symptomatic individuals and treating those with the virus.   In an unprecedented move, agencies in many states, including the Louisiana Department of Health, have issued restrictive policies for hospital and nursing home visitors. Nursing homes are confining residents to their rooms to protect them and their community from contracting or spreading the virus.   Individuals suspected or testing positive for the virus are recommended to quarantine themselves and wear masks. 

Overloaded EDs will now be even more stretched.  The CDC has developed and is updating Guidelines for infection control and workers are being disinfected in the parking lot before entering the workplace. They are wearing goggles and masks, face shields, clothing and gloves to protect themselves. Protective gear and equipment is critical to protecting the workers and patients. A hospital’s infectious disease policies with specifics addressing this pandemic are also an excellent guide for hospital workers.  Hand hygiene is being stressed to all by the World Health Organization and CDC.  Hospitals can reemphasize to workers protocols already in place and new ones being developed to provide a safe and protected workplace.

II.  HEALTHCARE PROVIDER LIABILITY ARISING OUT OF COVID-19

Healthcare providers face increased risk of liability from COVID-19 in terms of claims by patients, as well claims by employees. 

A.  Liability To Patients

There are numerous potential claims that may be made against healthcare providers as a result of COVID-19.  We provide a non-inclusive list of the potential bases for liability to patients:

1. Failure to timely triage at the facility  (this could be for any ED patient if there is extreme crowding) Some hospitals are posting ED wait times online. Therefore, an individual is forewarned about the delay in treatment, and can choose to go to another facility with shorter wait times.   Obviously, if someone is coming in through emergency transport and already has symptoms, the hospital should immediately isolate the patient and give them a mask.  As to patients who are not symptomatic, there can be a questionnaire and a mask at the sign in desk.  The attendant could notify any person with an affirmative response to immediately return to the facility.  As always, if a patient presents with urgent symptoms, such as symptoms of a heart attack, they are immediately seen by a healthcare provider.  If an individual is transported by ambulance, the EMS staff may have already determined certain symptoms that can be reviewed immediately.
2.  Failure to respond to the unique needs attendant to this pandemic  As to overloaded EDs and long wait time, triage is key. Temperature checks at the triage level are recommended by CDC.  The waiting room could be equipped with protective masks in addition to isolating those present to be tested. Staffing is always an area highlighted in medical malpractice cases.   Hospitals are adjusting by having drive-by testing or designating a particular testing area for those coming to the ED for that reason.  If the hospital is following known CDC guidance and taking the necessary precautions, liability should be minimized.
3. Failure to provide properly trained staff to address the issues involved in the pandemic  Emergency medical personnel and hospital personnel (especially in emergency departments) are asking individuals to self-identify for the virus and isolating or quarantining suspected cases and providing them with protective face masks. ED personnel are being trained to ask and check for known COVID-19 symptoms and are developing self-contained units for individuals testing positive and in need of hospital care.  Hospitals must be proactive in identifying potential cases. Turning away individuals, like Mark Frilot, a local attorney, because he was not early identified as having the virus by an urgent care center, can lead to dire consequences.  Some hospitals are setting up drive-by testing which tends to assist in isolating potential cases. Individuals are also being asked to contact their physician if they suspect contagion and to notify any emergency personnel who may be assisting them.  Standard staffing rules apply.  If there is a shortage or the hospital cannot properly staff, then it must close down until it can adequately staff.  Plaintiffs like to argue inadequate staffing as a basis for liability, but if the hospital is following its rules and cannot accommodate patients, then a plaintiff is not likely to succeed on that argument. Furthermore, a plaintiff would still have to prove that even if the staffing was inadequate, that the inadequacy was the cause of the bad result. A hospital would argue they were in crisis mode and could not be responsible for the staffing demand it cannot control in this emergency situation.
4.  Failure to immediately provide protective gear (clothing, gloves, goggles, masks) to both staff and patients as appropriate  Ensure that the facility provides protective gear, including clothing, gloves, goggles, and masks, to protective the spread of the virus.  Officials from many states are warning that because of the outbreak, there may not be enough beds to handle the crisis.  Hospitals need more bed capacity in short order, which is why states are going to need more doctors, more nurses and more beds, protective gear and equipment.  States are seeking national support. 
5. Failure to properly staff for the needs of the patient  There is likely no leeway for the hospital or ED nurse because the patient census was very high.  Juries often think only of the one ED patient who was harmed, without considering 5 other high-acuity patients that presented simultaneously.  If that holds for the pandemic, there could be many malpractice lawsuits alleging delayed care.  The hospital cannot be held to a higher standard during a pandemic.  While a hospital certainly needs to adjust for expected volumes to the extent that it is able, that cannot always occur.  That said, a hospital needs to heed the standard for care and infection control, which in the case of this pandemic is set by CDC and the other regulators.  Providers are reminded to keep up with the latest guidance, which is still fluid. 
6. Failure to properly isolate patients pursuant to CDC recommendations and protocols  In some scenarios, it may not be so much the delay in treatment, but the failure to isolate the patient which may cause cross contamination with others.  Perhaps with a questionnaire at check in, the patients could be given masks and have their temperatures taken.  These actions would mitigate liability for delays due to vast volumes of people. Even in normal times, an ED waiting room can be overcrowded. 
7.  Failure to take patients’ temperatures and ask specific questions recommended by CDC to identify patients suspected of having the virus  The scenario for this kind of claim would be a patient with COVID-19 who was not timely identified, with bad outcome due to the delay.
8. Failure to follow CDC and CMS guidance specific to the healthcare provider type and Failure to follow the specific CDC infection control guidance specific to this virus.   We expect claimants to allege that any deviation from the CDC or CMS guidelines is negligence per se.  To the extent possible, facilities and providers should remain abreast of developments and updates, and abide by them as possible. 

In summary, the majority of the potential liability for the healthcare industry is in the form of inaction, rather than action.  Legal risks are in not training the staff and taking the precautions recommended by the CDC.  Information is fluid and most hospitals are responding as quickly as information is available.  Hospitals have already taken the precaution of having all non-essential personnel work from home. With respect to staff in high risk areas of the hospital, more precautions are better.  Hospitals can restaff these areas with staff who are not in a high risk category.  The facility should provide all the protective gear and equipment to the staff as well as to the patients (e.g. patients with virus wear masks and may have protective gloves changed regularly and waste is discarded as other hazardous waste.

B.  Liability To Employees Pursuant To Worker’s Compensation

Employees in some states are already filing workers’ compensation claims, asserting that they contracted COVID-19 as the result of their employment.  While state compensation schemes vary, generally an illness is compensable under a state workers’ compensation act so long as it is work-related.  The burden is on the claimant to show that exposure to a virus occurred during the course of employment, and that the conditions were specific to their work. 

Showing that the exposure to the virus was sufficiently intertwined with their work will present a significant hurdle for employees who contract COVID-19 but work in a lower exposure risk environment.[1]  Employees in very high to high exposure risk environments who contract COVID-19, such as healthcare workers and medical transport workers, however, are far more likely to show work-relatedness.  We note that two state insurers, a Kentucky insurer and the Washington State Department of Labor and Industries, have already guaranteed that workers’ compensation benefits will be paid to healthcare workers and first responders.  Of course, workers’ compensation is state specific and compensability issues will be assessed on a case-by-case basis. 

C.  Liability To Employees Beyond Worker’s Compensation

Where there is an influx of workers’ compensation claims, employer liability claims are not far behind.  The Occupational Safety and Health Act (OSHA) requires employers to comply with specified safety and health standards, including a general duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm.  OSHA has published COVID-19 planning guidance, urging employers to adopt its recommendations for identifying risk levels in the workplace and implementing appropriate control measures.  

Employer’s liability is generally implicated when there is a claim that the employer’s negligence has caused an employee to suffer bodily injury by accident or disease.  Failure to take into account the recommendations and mandates set forth by federal and state agencies regarding COVID-19 and subsequent contraction of the virus by employees, co-workers or family members could trigger defense obligations under employer liability policies.  Although CDC and OSHA recommendations are not mandatory, there is a likelihood that these guidelines will be seen as the standard of care.

Nevertheless, employer’s liability coverage requires that the bodily injury be sustained during the course and scope of the injured employee’s employment, as well as to have been caused or aggravated by the conditions of that employment.  As with workers’ compensation claims related to COVID-19, we expect a showing that a claimant was exposed to the virus while working will prove difficult with many claims.    

III.  RECOMMENDATIONS FOR HEALTHCARE PROVIDERS TO MINIMIZE LIABILITY DUE TO COVID-19

We offer the following best practices and recommendations in order to minimize healthcare liability arising from COVID-19. 

     A.  Do not panic.  Information is knowledge.  Keep staff and patients apprised of developments.  Continually update training and protection as CDC, WHO and State updates are available.

    B.  Specific training and additional guidance and documentation are essential for supply staff.  Document with log communications and supply sources, the State, FEMA, and federal government supply/demand for protective gear and equipment. Protect staff and patients utilizing isolation and distancing protocols.

    C.  Determine capacity and capability of facility with daily updates to key personnel and the State.  It is important to give the State data to request federal aid of gear and equipment to be responsive to need of the population being served.

    D.  Determine facility availability for isolation and quarantine and convert space to respond to need as necessary. 

    E.  Utilize Telehealth, online physician support services. 

IV.  STATE GOVERNMENT ACTIONS IN RESPONSE TO COVID-19

Louisiana is in the forefront navigating the mounting complications related to COVID-19.  As a courtesy, the following is a summary of actions taken by State of Louisiana Government, with hyperlinks to the referenced Orders.

    A.   Emergency Suspension of Legal Deadlines  Suspension of Legal Proceedings.  Pursuant to Proclamation JBE2020-30, all legal deadlines and other deadlines under the Louisiana Medical Malpractice Act are suspended, commencing on March 17 to April 13, 2020.  However, according to the PCF, the suspension of deadlines does not apply to deadlines relative to payment of the PCF surcharge. 

    B.  Healthcare Coverage for Louisiana Families Act  Louisiana Dept. Of Insurance (DOI) Emergency Rule 35 – Healthcare Coverage for Louisiana Families Act: The purpose of Emergency Rule 35 is to define essential health benefits and required levels of coverage and to establish annual limitations on cost-sharing.

    C.  COVID-19 Cost Sharing  DOI Emergency Rule 36: This Rule was issued to address the public health emergency resulting from the threat of COVID-19, ordering insurers and HMOs to waive any cost-sharing, including co-payments and deductibles, related to testing for COVID-19.

    D.  Waiver of Coverage Limitations for Telemedicine  DOI Emergency Rule 37:  This Rule waives coverage limitations related to provision of telemedicine services.

    E.  Protocol for Temporary Licenses to Insurance Agents  DOI Emergency Rule 38: provides for procedures for implementing protocol to issue temporary licenses to insurance agents. 

    F.  Non-Cancellation Provision  DOI Emergency Rule 40:  This rule suspends the effect of any notice of cancellation, nonrenewal or nonreinstatement of an insurance policy that was in effect on March 20, 2020, and prevents cancellation of an insurance policy due to any claim filed during the emergency period (except cancellations resulting from fraud or misrepresentation of material facts). 

V.  HEALTHCARE LAW UPDATES UNRELATED TO COVID-19

In addition to the novel issues presented by COVID-19, there are some recent cases unrelated to COVID-19 pertaining to the healthcare industry. 

Thomas v. The Regional Health System of Acadiana, LLC, 2019-C-00507, 266 So.3d 354 (La. 01/29/20)  Where a claim of negligent credentialing against hospital is intertwined with the plaintiff’s claim against the physician alleging negligent treatment of the patient, the Louisiana Supreme Court holds that claims of negligent credentialing and re-credentialing falls under the Louisiana Medical Malpractice Act and not general tort law, and the hospital has a right to pre-suit review of the negligent credentialing claim before a lawsuit can be filed.

Jones v. ABC Ins. Co., 19-CA-141, ____So.3d _____ (La. App. 5 Cir. 01/29/20)   La. R.S. 40:1231.3 of the Louisiana Malpractice Act provides for future medical care and related expenses, including custodial care.  La. R.S. 40:1231.3E(2) provides that when the Patient Compensation Fund (PCF) unreasonably fails to pay for future medical care, the court must assess attorney fees against the PCF in an action seeking payment.  In this case, the PCF agreed to pay the mother of a patient $15.00 per hour for the custodial care of her child as part of future medical care.  The mother filed an action against the PCF alleging that the PCF unreasonably refused to pay for custodial care.  The Fifth Circuit Court of Appeal ruled in the PCF’s favor, finding that the PCF’s failure to pay for custodial care was reasonable because the timesheets documenting the mother’s work failed to provide an adequate description of services as required under the Louisiana Administrative Code.  The court noted that requiring a description of services on the care taker’s timesheets is not an unreasonable condition for payment.

Granier v. Lexington Insurance Company, 288 So.3d 268 (La. App. 4 Cir. 12/27/19)  The Louisiana Medical Malpractice Act, Section 1231.8, provides that when a patient files a request for medical panel review against a healthcare provider, the statute of limitations (prescription) against other joint and/or solidary liable healthcare providers is suspended.  In this case, the plaintiff timely filed a request for medical panel review against the first doctor, and two years later, amended her complaint to add a second doctor.  Generally, the claim against the second doctor would be considered untimely because it was filed more than one year from date of discovery of the alleged malpractice.  However, the plaintiff alleged that the second doctor was jointly liable with the first doctor for her injuries.

The medical review panel subsequently issued an opinion that neither doctor breached the standard of care.  The plaintiff then filed suit against both doctors in Civil District Court.  The first doctor filed a motion for summary judgment, which the court granted.  The second doctor then filed a Peremptory Exception of Prescription, which the court also granted.  The Fourth Circuit Court of Appeal affirmed the trial court’s ruling.  The court noted that where no liability is found on the part on a timely sued alleged tortfeasor, prescription will not be interrupted or suspended as to other tortfeasor, who is not timely sued, since no joint or solidary obligation exists.  Because the claim against the doctor who was timely sued was dismissed with prejudice, there is no joint liability.  Hence, the claim against the second doctor filed two years later was barred by the one year statute of limitations for medical malpractice actions.

Sawyers v. Naomi Heights Nursing Home, et al, 279 So.3d 404 (La. App. 3 Cir. 08/21/19)  Defendant sought to have excluded from evidence the DHH Deficiency Report on the occurrence as inadmissible hearsay pursuant to La. Code of Evidence Article 803(8)(b)(IV), which provides that factual findings resulting from an investigation of a particular complaint, case, or incident, including the investigation of facts and circumstances on which the present proceeding is based, are inadmissible hearsay.  In other words, factual findings of a general investigation are admissible but factual findings of a particular incident are not admissible as a public record.  See Green v. Connor, 644 So.2d 618 (La. App. 1994).  The plaintiff argued that the investigation was admissible pursuant to La. R.S. 13:3715.3.G(4)(e).  The Court agreed with the plaintiff and interpreted La. R.S. 13:3715.3.G(4)(e) to allow admissibility of DHH reports.

Scio v. University Medical Center Management Corp., 2019-CC-1319 (La. 10/21/19)  In this case, the trial court granted the healthcare provider’s Exception of Prematurity holding that plaintiff’s claims fall under the pre-suit medical panel review requirements of the Louisiana Medical Malpractice Act.  The plaintiff alleged that the defendant was negligent for failing to implement an administrative policy setting forth procedures to ensure that follow up appointments are communicated to the patient. In a per curium opinion, the Louisiana Supreme Court reversed the trial court’s judgment, and held that the allegations of the petition raise administrative negligence rather than medical malpractice.

Hawkins v. The Schumacher Group of Louisiana, 53,137-CA (La. App. 2 Cir. 11/20/19)  Providing anesthesia services in rural hospitals, which do not have a large enough population base to include a local anesthesiologist, is oftentimes accomplished through various intermediaries and agreements necessary to serve citizens in the region.  In this instance, Morehouse General Hospital and its patients were served through an agreement between the hospital and Clinical Partners-Louisiana, PLLC (CPL), to staff and manage the anesthesia services program and protocols.   Clinical Partners-Louisiana, PLLC, would in turn contract with certified nurse anesthetists (CRNA) to deliver those services to patients.  After suffering from complications caused by improper intubation following a routine C-section, plaintiff filed suit against multiple healthcare providers, including the CRNA and CPL.  After all defendants except CPL were dismissed from the lawsuit, CPL filed a Motion for Summary Judgment asserting that CPL cannot be liable for acts and omissions of CNRAs because they were independent contractors.  The trial court granted CPL’s Motion for Summary Judgment.  On appeal, the Louisiana Second Circuit Court of Appeal reversed the judgment, finding that CPL’s contract with the hospital required it to provide services related to the provision of anesthesia.  These services included supervision of CRNAs, and the evidence in the record shows that CPL failed to supervise the CRNA in this instance. 

Kirt v. Metzinger, 2019-C-01162 (La. 04/03/20)  On April 3, 2020, the Louisiana Supreme Court ruled that failing to timely pay the $100 filing fee for a healthcare provider named in an amended complaint for medical panel review does not render the medical panel review proceedings against the previously named healthcare providers without effect where fees were timely submitted, overruling various lower appellate court cases which previously had ruled that failing to pay the $100 fee for one defendant results in the entire medical panel proceeding having no legal effect.  The Kirt claimants filed a request for medical panel review against five healthcare providers after the death of their mother due to complications from surgery, and submitted the $100 filing fee per defendant ($500).  A sixth healthcare provider was subsequently identified and added as a defendant.  The PCF notified claimants that the sixth defendant was qualified and instructed the claimants to submit an additional $100 fee.  Plaintiffs failed to timely pay the fee.  Nevertheless, the panel convened and found no breach in standard of care in favor of all six defendants.   After the claimants filed suit, two of the defendants for which fees were timely paid and the sixth defendant for whom no fee was paid filed an Exception of Prescription.  Defendants argued that failing to pay the filing fee for all six defendants renders the medical panel review without legal effect.  As a result, the lawsuit filed more than one year from the occurrence had prescribed.  The trial and appellate courts upheld the defendant’s Exception.  The Supreme Court reversed, interpreting the Louisiana Medical Malpractice Statute to mean that failing to pay the $100 fee for a particular defendant means that the medical panel review proceeding has no legal effect as to that particular defendant.  Accordingly, it reversed the exceptions of prescription filed by the two defendants for which the fees were timely paid.  However, as to the named defendant where claimants failed to timely submit the $100 filing fee, the Court affirmed his Exception of Prescription because the panel proceeding had no legal effect against him, and as a result did not stop or suspend the running of the statute of limitations against him.  

Blazio v Ochsner Clinic Foundation, 2019-CA-0753 (La. App. 4 Cir. 03/04/20)  In this matter, the patient had locked herself in the bathroom.  The hospital staff could not gain entry until it had removed the door from its hinges.  By that time, they found plaintiff unresponsive and without a pulse.  Efforts to revive her were unsuccessful.  The mother filed a wrongful death suit against the hospital and staff, alleging that not having means to quickly open a locked door to a hospital bathroom was negligent.  The hospital filed an Exception of Prematurity arguing that the plaintiff failed to have her claim undergo pre-suit medical panel review as required by the Louisiana Medical Malpractice Act.  The Fourth Circuit Court of Appeal held that the defective lock claim fell outside the protections afforded to healthcare providers under the Louisiana Medical Malpractice Act.  Such claim related to deficient design of the hospital and lack of an emergency plan, which were not “treatment related” or related to dereliction of a medical professional skill, and would not require medical expert testimony or an assessment of the patient’s condition.

VI.  SUMMARY AND CONCLUSION

COVID-19 has impacted most healthcare providers on a personal level, as well as a professional level.  Many claims will likely be asserted against healthcare providers in the next year.  Healthcare providers should be vigilant and proactive, adhering to CDC recommendations as possible.  Vigilance is key.  Healthcare providers must stay informed, and in case of exhibiting symptoms, get tested and isolate until the results are known.  Specific training and additional guidance and documentation are essential for supply staff.  Providers should protect staff and patients utilizing isolation and distancing protocols

We hope that the foregoing recommendations provide guidance on minimizing liability.  We are available to assist with your legal needs arising from the pandemic.  Please contact us with any questions.

Sid

Sidney W. Degan, III
Managing Partner 
E-Mail: sdegan@degan.com

DEGAN, BLANCHARD & NASH 
A PROFESSIONAL LAW CORPORATION
NEW ORLEANS | BATON ROUGE | LAFAYETTE
WEBSITE: WWW.DEGAN.COM

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[1] See cdc.gov and osha.gov for more information on exposure risk.

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