The COVID-19 pandemic is becoming far more than just a public health crisis. The effects of the virus have proven to be long reaching, transforming one crisis into many. As businesses across the country were forced to close their doors during the initial outbreak, the country experienced a record surge in unemployment due to the resulting economic fallout. While the economic crisis has received much of the attention, there is a third crisis that has been less discussed—the litigation crisis—which has already begun and is predicted to last for several years.
Legal experts have been warning all industries about a coming “Tidal Wave” of COVID-related lawsuits, and it would appear that wave is already making landfall. The Washington Post reported at the start of this month that 771 COVID-19-related lawsuits have already been filed against hospitals, prisons, fitness chains and other entities. More recently, the National Law Review reported even higher numbers with as many as 800 such cases.
For specialty practices that are once again beginning to see patients, it is important to fully understand any areas of potential COVID-related legal issues. In Nextech’s continuing effort to keep customers informed, and to support our readers as they begin reopening their facilities, this blog will discuss the legal liabilities of COVID-19 for specialty practices.
Employee Safety Liability
When it comes to reopening your practice, employee safety liabilities need to be addressed before you start seeing patients. From a legal standpoint, there are two main areas where practices could run into trouble with their employees. First is ensuring that you are providing staff with the safest possible environment in which to work. This means making sure staff are provided with an adequate supply of Personal Protective Equipment (PPE) as well as implementing reduced contact processes. If staff members feel as if they are being forced to return to work in an unsafe environment, it could open up your practice to a lawsuit. Be sure staff are properly trained on all new procedures, policies, PPE use, software solutions, etc. and have staff sign acknowledgements of completion/participation.
Secondly, you must ensure that employees are not only allowed but required to stay home if they are showing symptoms of illness or have tested positive for COVID-19. If an infected employee was to come to work, it could easily spell a disaster that could irredeemably ruin a practice’s reputation. Failing to do so could also leave the practice liable for lawsuits, both from employees and from patients who may be exposed. If a provider is found to have been negligent, it could even lead to that provider’s arrest.
To further safeguard your practice, all staff should be tested for COVID-19 prior to returning to work and these test results should be documented in each employee’s file. Every employee’s temperature should be taken at the start and end of each workday. These temperatures should be tracked in a log along with a list of daily COVID-19 screening questions that are asked to all staff before the start of all shifts.
When it comes to liability related to patients/customers, there are two main things to consider—appropriate protective measures and proper product branding. This starts with being able to demonstrate that your practice is doing everything possible to reduce the risk of spreading COVID-19 to patients. This means implementing as many contactless processes and solutions as possible—telehealth, virtual waiting rooms, patient portals, etc. At this stage of the COVID-19 game, these measures should already be a no brainer for any medical practice that is reopening.
Patients’ temperatures should be taken before each appointment to confirm they are not running a fever. These temperatures should be documented by staff. Patients should also be presented with COVID-19 screening questions prior to any visits or procedures. Their answers to these screening questions should be logged in EMR notes. Check your patient portal or intake solution to see if it provides built-in screenings that are automatically sent to the EHR.
Also be sure to check with your respective specialty organization to see what, if any, COVID-19-related consent forms they recommend or require. Be sure to have patients sign any relevant consent forms before a visit or procedure.
The second item, proper product branding and labeling, may seem like a strange thing to be concerned about but it truly has the greatest potential for permanently harming your practice. You may be wondering how a practice’s labeling of the products it sells could cause legal trouble? Well, just ask the doctor over at Skinny Beach Med Spa in San Diego, CA. He’s been arrested and charged with fraud by federal prosecutors for selling “COVID-19 Treatment Packs” that he claimed were a “100% Cure” for the virus. These packs included such things as Xanax, hydroxychloroquine (which the FDA cautions against using due to the danger it poses) and azithromycin, all sold at an exorbitant price tag of “$3,995 for a family of four.”
You could also ask Dr. David Jockers, who received a warning letter from the FTC for making claims that daily doses of Vitamin C, Vitamin D, Zinc and Elderberry (all of which he had for sale) were the “Top ways to prevent Coronavirus infection.” In fact, you could ask any of the 44 other herbal supplement companies, med spas, healthcare practices, etc. that have also received similar FTC warning letters for mislabeling products as treatments or cures for COVID-19.
The simplest and most effective way to avoid running into this problem is to NEVER label or brand any of your products with the words “COVID-19” or “Coronavirus,” unless of course you are actually selling an FDA approved treatment or vaccine (at the time of writing, an approved vaccine does not exist).
Safeguard Your Practice
Before reopening, you need to take appropriate steps to ensure you are safeguarding your practice from legal liability in several key areas:
- Exposure Reduction – Implement and strictly enforce cleaning procedures, intake workflows and protective policies. Provide adequate PPE to ensure staff safety. Create logs and daily signoff sheets to ensure this is well documented.
- Resurgence Risk Reduction – Adhere to all gating criteria and follow all regulatory guidelines to reduce the risk of contributing to a resurgence.
- Watch for Symptoms – Always follow CDC guidelines to identify confirmed or suspected cases of COVID-19 among your staff or patients.
Additionally, be sure your practice has strong documentation to prove you are operating in compliance with OSHA Infection Prevention Measures. In the event of a surprise audit for workplace compliance, you are far less likely to run into delays or shutdowns if your documentation is already compiled and in proper order. Without documentation, you have nothing but your word and that will definitely not be enough evidence to appease an auditor.
For more detailed instructions on how to safeguard yourself and your practice against legal liability related to COVID-19, check out our recent webinar, Reducing COVID-19 Risk: Addressing Regulatory & Liability Concerns.
Be Smart & Avoid Legal Trouble
The best way to avoid legal liability for your practice during this period is to just stay smart. Follow all state and federal guidelines for safely reopening your business. Take care of your staff and protect your patients. And last but certainly not least, do not attempt to use COVID-19 as a branding gimmick to boost sales of unapproved drugs or supplements (aside from being very illegal, it’s just not a good look).
Since the start of the pandemic, Nextech has remained committed to ensuring users have the resources, information and technology needed to adapt to the dramatic changes taking place in healthcare. To learn more about how Nextech can help your practice follow best practices and create a long-term strategy for overall success, simply fill out this form and a member of our team will contact you.
The information provided in this blog article does not, and is not intended to, constitute legal or other advice; instead, all information, content, and materials are available for general informational purposes only. Information in this article may not constitute the most up-to-date legal, financial or other information. Readers should contact their attorney, financial, tax, or other advisor to obtain advice with respect to any particular matter. This article contains links to other third-party websites. Any such links are provided only for convenience and Nextech does not recommend or endorse the contents of any third-party sites.