Protection in Documentation

The best advice I have for risk mitigation—other than taking good care of your patients—is to document well. COVID-19 care documentation is required to even consider application of the PREP Act. Be sure to explain any deviations from usual practice that are due to the pandemic. Document if hospital capacity or concern for the nosocomial transmission of COVID-19 factored into any decisions to discharge or admit a patient. Make sure your patients understand their discharge instructions and return precautions, and document that as well. Even for non-COVID-19 patients, consider charting a statement such as “…as this patient was seen during the COVID-19 pandemic, they were queried about fever, cough, [etc.].” This makes it clear that the patient is being seen at a time when hospital capabilities may not be at their norm.

There are other important ways to protect yourself legally. If you find yourself practicing outside of your usual environment, it is crucial that you are in touch with your insurance carrier to apprise them of those changes. You want to be assured in writing that you have coverage extending to any new activities.

Last spring, many physicians volunteered in hard-hit areas across state lines; some physicians even came out of retirement to help. In these situations, there are some federal protections against liability, and some states have their own sets of protections for volunteers. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act became active law; it includes Good Samaritan language that provides additional federal liability protections. Physicians and other health care professionals who provide volunteer medical services during the pandemic will not be held liable for care relating to COVID-19—again, except in cases of gross negligence or willful misconduct. The federal law supersedes any state laws that are less protective.

While all of this is helpful for volunteers, do not rely exclusively on these protections. You must have adequate malpractice insurance coverage for your volunteer activities. If a lawsuit is filed, it is crucial that you are covered, as an attorney will be required to defend your case and demonstrate whether these acts even apply. Attorney’s fees will be thousands of dollars if paid out of pocket. It is much better to have proof of insurance coverage in writing, likely through your volunteering program. It is also important that your license is fully in order to practice in whatever state you may find yourself working.

Take proactive steps to protect yourself the best you can. Then go back to taking good care of your patients, knowing you have taken the necessary steps to take care of yourself.