Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury VerdictOctober 13, 2020 | Nathan Leming and Kelly Sabatés
Florez v. Northshore Univ. Healthsystem, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560
The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child’s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child’s alleged brain injury sustained at birth.
Plaintiff alleged the defendant failed to diagnose and treat the child’s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff’s counsel argued throughout the case and at trial that the child’s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child’s condition with no causal connection to the birth treatment.
Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist’s report, the defendant’s experts found that the plaintiff’s autism diagnosis supported their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.
Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff’s motion to strike and found the defendant’s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.
However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage “tactical gamesmanship” because the plaintiff filed his expert’s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.
Though the plaintiff’s experts opined that the defendant’s negligence led to oxygen deprivation and plaintiff’s injuries and cognitive deficits, the defendant’s experts opined that plaintiff’s injuries were chronic. For example, the defendant’s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.
Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant’s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.
Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff’s future medical needs, school requirements, and employment prospects.Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.
On July 1, 2020, Governor Mike Parson signed Senate Bill 591 (SB 591). The new law states it will apply to all suits filed on or after August 28, 2020. SB 591 makes significant changes to the framework for punitive damages in tort actions filed in Missouri state courts or filed in other courts but based on Missouri state law tort claims. The discussion that follows is limited solely to medical negligence cases. Though not dealt with here, SB 591 also includes significant changes to actions under Missouri's consumer protection statute, the Merchandising Practices Act (“MMPA,” § 407.025, et seq., RSMo. (2020)).
Clarifying the Proper Standard
SB 591 is intended to bring much-needed clarity to punitive damages in medical negligence cases. This is not the first time the Legislature has addressed the issue, however. Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those “intended to punish or deter willful, wanton or malicious misconduct.” § 538.205(11) (1986). Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only “upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . . § 538.210.8 (1986).
Unfortunately, this statutory definition has proved problematic in its application. For example, in one medical negligence case involving a substantial punitive damages award, the trial court approved (over the defendants’ objection) a jury instruction submitted by the plaintiffs that used the standard “complete indifference or conscious disregard” instead of the “willful, wanton or malicious” standard mandated by § 538.210.8. See, Koon v. Walden, 539 S.W.3d 752, 773 (Mo. App. E.D. 2017). That meant the jury was not instructed using the statutory language, and the jury did not specifically find that the defendants engaged in “willful, wanton or malicious misconduct.” The Missouri Court of Appeals, Eastern District, affirmed, concluding that for purposes of punitive damages, acting with “complete indifference or conscious disregard for the safety of others” is the legal equivalent of engaging in “willful, wanton or malicious misconduct.” Id. at 774-75. In a concurring opinion, one appellate judge stated: “I agree that the common understanding of the words ‘willful, wanton or malicious’ mean something different than ‘complete indifference to or conscious disregard for the safety of others’,” and that the instructional issue merited further review by the Supreme Court. Id. at 775-76. Despite this invitation, the Supreme Court of Missouri denied the appellants’ application for transfer.
SB 591 takes this issue head on and requires that a jury find “the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.” § 538.210.8, RSMo. (2020). Further, and apparently in response to the Koon decision, SB 591 explicitly states that: “Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.” Id. This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards.
As mentioned above, as part of this new, heightened standard, SB 591 includes the “clear and convincing” burden of proof for punitive damages. This concept is not new, however, as the Supreme Court of Missouri adopted this evidentiary standard for all tort cases in Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 106 (Mo. 1996). Now, SB 591 codifies this standard into the statutory framework. Unchanged is § 510.265, RSMo. (2005), which limits punitive damages in most civil cases to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater. The Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014) decision, in which the Supreme Court of Missouri reasoned that applying the punitive damages cap to a common law cause of action violated the constitutional right to a trial by jury, does not prohibit the Legislature from capping damages for a statutory cause of action such as medical negligence. See § 538.210, RSMo. (2015) (creating statutory cause of action for all medical negligence actions and replacing common law claims).
Significant Procedural Hurdles
Though not solely applicable to medical negligence actions, SB 591 also includes a series of procedural hurdles that a plaintiff must overcome before a court may allow a plaintiff to plead a claim for punitive damages and submit such a claim to a jury. These changes are included in Chapter 510. Under the new law, a plaintiff may not plead a claim for punitive damages until after a court has determined, based on available evidence, that a jury could reasonably conclude that the burden of proof and standard of liability have been met. § 510.261.5, RSMo. (2020). This will be important, as it has become increasingly common for Missouri plaintiff attorneys to include in a medical negligence petition a prayer for punitive damages along with compensatory damages as a matter of course, regardless of the nature of the facts of the specific case. This should no longer be tolerated unless the court grants a motion for leave filed no later than 120 days before the final pretrial conference or trial. No pleading or discovery shall be permitted on punitive damages unless a plaintiff first clears this procedural hurdle.
Vicarious Liability Issues
SB 591 also includes a “Complicity Rule” that limits vicarious liability for punitive damages against an employer/principal for employee/agent conduct. The new law permits such an award against an employer for the conduct of an employee only if the employee was a managerial employee acting in the course and scope of his employment; the employer authorized or later ratified the employee’s conduct; or the employee was “unfit” for the job making it “reckless” for the employer to hire or retain the employee. § 510.261.3, RSMo. (2020). It remains to be seen how courts will apply this rule to health care providers, but § 538.210.4, RSMo. (2020) is unchanged and continues to prohibit health care provider vicarious liability for the conduct of a non-employee agent.
SB 591 represents a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages. It is a robust effort designed to bring into focus the blurred line between mere negligent conduct and conduct that justifies an award of punitive damages, along with a procedural framework to weed out frivolous claims and ensure plaintiffs are held to the appropriate standard and burden of proof. The provisions outlined above appear to offer significant protections for health care provider defendants, while also allowing for the possibility of a punitive damages claim, but only in the rare circumstance where the evidence would support it.
*Baker Sterchi Member Lisa A. Larkin assisted in the research for this post.
Indeed, telehealth is rapidly becoming a new normal” for routine healthcare visits, a market predicted to reach more than $130 billion worldwide by 2025 and $10 billion by the end of 2020. What is telehealth? According to the U.S. Department of Health and Human Services, Office for Civil Rights, it is “the use of electronic information and telecommunications technologies to support and promote long-distance clinical healthcare, patient and professional health-related education, and public health and health administration.”
Examples of telehealth and its technologies include: mobile and/or wireless health platforms, real-time interactive services, such as teleconsultation and telenursing, and remote patient monitoring (such as for diabetes, weight gain/loss, and dementia), which are available via the internet, video, steaming media, webcam, live chat and/or video conference.
While innovative, convenient, and helpful to our society, especially in these challenging times, such telehealth programs have also raised concerns about cybersecurity risks to healthcare organizations and the public as healthcare organizations continue to speed toward implementing these programs. Examples of such cybersecurity risks include hacking and data breaches, phishing attacks, ransomware threats, loss or theft of equipment, data loss, and medical device attacks. These threats are especially concerning considering HIPAA privacy requirements. However, during the COVID-19 pandemic, organizations implementing telehealth programs will not likely be penalized by the HHS, Office of Civil Rights for HIPAA violations should the programs fail to comply with the required regulations, as long as they are using non-public facing remote communications in good faith. This leniency is not likely to last forever though.
What makes these threats possible? The fact that these telehealth systems heavily rely on the Internet. Further vulnerabilities of such systems include weak passwords, insecure network services, lack of secure updates, lack of privacy protection, outdated antivirus software, lack of secure data transfer and storage, and lack of device management.
However, to provide some protection, the following non-public facing remote communications are currently permitted: Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, Zoom and Skype. These types of communications use end-to-end encryption, allowing only the person or persons communicating on each end to see what is transmitted, require personal accounts, logins, and passwords, and provide the users some control over how the communication occurs (i.e. video, sound, etc.). Not included in this list are Facebook Live, Twitch, TikTok, and similar video communication applications, as they are public facing. Such public facing forms of remote communication are not secure for such telehealth programs due to being open to the public and permitting more open and uninhibited access to the communications taking place.
Telehealth is likely here to stay, which is why it is so important that organizations and individuals ensure that steps are continuously taken to protect the platforms from breaches and protect users’ private information. There are many other organizations providing continuing recommendations of how to mitigate and otherwise address cybersecurity risks and actual breaches. See American Hospital Association and National Institute of Standards and Technology. To learn even more about cybersecurity risks and practical approaches to effectively defending against and/or addressing breaches, BSCR previously did a three part series on cybersecurity risks, which can be accessed here, here, and here.
COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations - Causation Issues (Part 4)May 7, 2020 | Nathan Leming
In part four of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider causation issues for healthcare associated COVID-19 infections.
General Infection Causation Issues
While every corner of American commerce, including food suppliers and sellers, financial institutions, childcare providers and fitness centers, may face increasing liability claims from customers and third parties claiming to have been exposed to COVID-19 during a visit to their premises, in most cases, proving that an infected person caught COVID-19 from a specific source should be a difficult task, especially considering the known virus viability outside the body and incubation time (the time between contracting the virus and onset of symptoms).
According to a study published in the New England Journal of Medicine, SARS-CoV-2, the virus that causes COVID-19, can live in the air and on surfaces between several hours and several days. The study found that the virus is viable for up to 72 hours on plastics, 48 hours on stainless steel, 24 hours on cardboard, and 4 hours on copper. It is also detectable in the air for three hours. After interaction with an infection source, most estimates of the incubation period for COVID-19 range from 1-14 days, with most infected individuals exhibiting symptoms around five days. Given the difficulty tracking all interactions of an infected person during the combined length of time between virus viability outside the body and incubation, narrowing the source of infection to one source and effectively ruling out all other possible acquisition more likely than not to a reasonable degree of certainty will likely be a difficult task.
Causation Issues for Healthcare Associated COVID-19 Infections
Nosocomial or healthcare associated infections are infections acquired during care which are not present or incubating at admission or treatment start. Nosocomial infections have been a reality since the origin of medicine and have been the object of litigation for some time. Undoubtedly, the COVID-19 pandemic will result in numerous lawsuits alleging that a healthcare provider’s negligence led to infection during treatment. However, given that most infections are asymptomatic for some time after their onset, it can be very difficult to identify with precision whether the infection was indeed contracted after admission or whether the patient was infected before admission but asymptomatic. Several agencies and authorities have attempted to identify time parameters for establishing what generally constitutes a nosocomial infection. For example, the World Health Organization (“WHO”) “usually” considers infections occurring more than 48 hours after admission to be nosocomial. However, the “usual” qualifier in the WHO’s definition allows a case-specific analysis of whether an infection can be deemed nosocomial. Thus, the WHO’s 48-hour cutoff, or any other third-party’s definition is not likely to apply to alleged COVID-19 infections given the longer incubation time discussed above.
For long-term care facilities, although a complete causation defense may be complicated by a resident’s likely admission predating the COVID-19 outbreak, providers should still attempt to establish a causation defense that a resident cannot prove virus transmission to a reasonable degree of certainty after the facility knew or should have known of the risk of COVID-19 transmission and before the recommended precautions were instituted. In support of this strategy, the Centers for Disease Control (“CDC”) has recognized that long-term care residents with COVID-19 may not report common symptoms like fever or respiratory symptoms, and some may not report any symptoms at all. The CDC acknowledges that unrecognized asymptomatic and pre-symptomatic infections likely contribute to transmission in long-term care facilities. These two CDC-recognized factors should strengthen a causation defense utilizing the above strategy.
COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations - State Executive Orders (Part 3)May 5, 2020 | Terrence O'Toole, Jr. and John Mahon, Jr.
In part three of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the American Medical Association’s push for states to pursue liability protections for healthcare professionals during the COVID-19 emergency.
In the wake of the COVID-19 Nationwide Public Health Emergency, the Centers for Disease Control and other federal, state and local agencies have published guidelines and recommendations for healthcare providers dealing with patient care in the midst of this crisis and resulting limitations on available resources, equipment, and healthcare staff. Indeed, the evolving response to the national emergency raises many concerns, including concerns for the health of the courageous and dedicated providers themselves.
By mid-April 2020, more than 9,000 U.S. healthcare workers had contracted coronavirus, with 27 U.S. deaths, and data suggests healthcare providers may account for approximately 11% of all COVID-19 infections. The authors of this blog series cannot fathom what these providers are going through, especially those caring for COVID patients throughout an entire shift, day after day, observing terrible suffering and outcomes, even with the best care and with healthy patients. These providers cannot help but feel that everything around them, especially in the hospital, could be a source of infection.
In addition to very real concerns for the health and wellbeing of these front-line healthcare providers, another significant concern is the risk of potential legal liability arising out of adherence to published guidelines and recommendations while also endeavoring to provide quality care. This is especially important in those areas of the U.S. hit hardest by COVID-19 that have experienced unprecedented patient load and corresponding limitations on supplies and healthcare personnel. Of particular concern are those healthcare professionals providing direct care to COVID-19 patients, those who have shifted their practices to telemedicine, and those guided in treatment decisions by governmental directives.
Thus, while federal and state laws provide existing protections to healthcare professionals, the American Medical Association has encouraged each state to consider whether additional protections should be extended to address the potential liability of healthcare providers affording care in response to COVID-19, as well as treatment decisions based on government or healthcare facility COVID-19 directives. For example, the CDC has published crisis standard of care recommendations for decontamination and reuse of filtering facepiece respirators which are not approved for routine decontamination and reuse.
To that end, the AMA has recommended states provide healthcare providers immunity from civil liability and adverse action by state medical boards for injury or death:
- caused while providing medical services in response to the COVID-19 outbreak;
- caused by volunteer physicians acting in good faith for care provided in response to COVID-19; and
- resulting from a federal, state, or local directive, including but not limited to those to cancel, delay, or deny care as a result of the COVID-19 pandemic.
In addition to the above recommendation, the AMA has provided recommendations on the appropriate mechanisms to formalize these protections, including through new laws, the expansion of existing laws, and/or by executive order. Some states have issued executive orders or proclamations to provide protections to allow for alternative standards of care. For instance, we have thus far identified executive orders in AL, AR, AZ, CT, GA, IL, MA, MI, MS, NC, NJ, NY, RI, VT. There are pending requests/proposals in other states to issue executive orders. Many of these parallel “good Samaritan” laws existing throughout the country that have for decades afforded qualified immunity from civil liability for healthcare professionals who volunteer their services as a generous compassionate act unless they engage in willful or intentional misconduct.
Thus far, one state that has followed the AMA’s recommendation is Illinois, which extended by executive order from the governor immunity to healthcare facilities, professionals, and volunteers from civil liability for any injury or death that occurs at a time when the facility or provider was providing healthcare services in response to COVID-19, except injuries or death caused by gross negligence or willful misconduct. Likewise, the governor of New Jersey issued an executive order providing immunity from civil damages for licensed healthcare providers for damages alleged to have been sustained as a result of their acts or omissions “undertaken in good faith” in connection with the State’s COVID-19 response. That immunity does not extend to acts or omissions that “constitute a crime, actual fraud, actual malice, gross negligence or willful misconduct.” For another example, the New York State Senate and Assembly passed the Emergency Disaster Treatment Protection Act that grants immunity from civil and criminal liability to healthcare facilities, professionals, and volunteers for the purpose of, “promot[ing] the public health, safety and welfare of all citizens” during the pandemic. Though the immunity does not apply to acts or omissions caused by “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm,” the Act expressly excludes unavoidable resource or staffing shortages as evidence of such conduct.
Though the authors of this blog series believe executive orders and laws like those described above are necessary in the current climate and likely helpful in mitigating some litigation risk for healthcare professionals, they will not necessarily end all litigation. These laws have not yet had to withstand scrutiny of the courts in terms of applicability, enforceability and scope. Moreover, even if some consider healthcare professionals likely to win lawsuits or that juries are likely to be sympathetic towards them, we should remember they must still defend themselves and undergo the stress, expense, and other burdens of litigation and threatened litigation in already difficult and truly unprecedented times. See here for more information on the recommendations of the American Medical Association.
COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations – Crisis Standard of Care? (Part 2)May 1, 2020 | Brandy Simpson and Kathryn Huelsebusch
In part two of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the “standard of care” for healthcare providers. Specifically, we consider whether the “standard of care” may not be so “standard” during this global pandemic. Medical negligence cases are won and lost after a determination of whether a healthcare provider met or failed to meet the standard of care. In these lawsuits, a jury decides whether the healthcare provider was negligent based upon the “standard of care.” In Missouri, the “standard of care” means to use that degree of skill and. learning ordinarily used under the same or similar circumstances by members of the defendant's profession.
During the COVID-19 pandemic, the “same or similar circumstances” portion of this definition have drastically changed considering the shortages of masks, face shields, other personal protective equipment (PPE), ventilators, swab kits, and testing capacity, all of which are critical for frontline caregivers and patients.
The Institute of Medicine Committee on Guidance for Establishing Standards of Care for Use in Disaster Situations defines “crisis standards of care” as:
“a substantial change in usual healthcare operations and the level of care it is possible to deliver, which is made necessary by a pervasive (e.g., pandemic influenza) or catastrophic (e.g., earthquake, hurricane) disaster. This change in the level of care delivered is justified by specific circumstances and is formally declared by a state government, in recognition that crisis operations will be in effect for a sustained period. The formal declaration that crisis standards of care are in operation enables specific legal/regulatory powers and protections for healthcare providers in the necessary tasks of allocating and using scarce medical resources and implementing alternate care facility operations.”
The medical community is working to establish guidelines for the “crisis standard of care.” The American Medical Association created an ethics resource page titled “Crisis Standards of Care: Guidance from the AMA Code of Medical Ethics” to offer guidance to healthcare institutions and providers on these issues during the pandemic. The Code does not offer specific clinical protocols, but instead provides foundational guidance for the development of ethically sound crisis standard of care guidelines.
“The goal is to make the decisions that happen at the bedside less ad hoc, so that they're more consistent, fairer and more objective,” said Elliott Crigger, PhD, Director of Ethics Policy at the AMA. “By having a set of standards, we’re not leaving it to somebody who, say, hasn’t slept in 48 hours or someone with a subtle bias against a patient."
The National Academies of Sciences, Engineering, and Medicine published a 200 page report in 2013 entitled “Crisis Standards of Care: A Toolkit for Indicators and Triggers” which addresses the standard of care during natural disasters, pandemics, and other catastrophic events.
At this stage, crisis measures are already being implemented in healthcare facilities across the U.S. Many of the recommendations involve the preservation and reuse of PPE due to the lack of resources. Outside the pandemic context, medical negligence cases commonly involve liability theories of medication errors, inadequate staffing, and ineffective infection prevention policies. These theories are likely to remain, but published “standard of care” guidelines in these situations during a public health crisis will likely be a moving target.
Other medical sources, committees and colleges have published on the crisis standard of care, including the American College of Emergency Physicians, the Institute of Medicine, and the Board on Health Sciences and Policy, among others. Litigators can only speculate how the standard of care for cases that arise during the COVID-19 pandemic will take shape. The only thing that is certain is that the crisis standard of care will be hotly contested and at the center of controversy in suits involving the care of patients with COVID-19 and the care of non-COVID-19 patients during the time of crisis.
Watch for our next post in this series, which considers the American Medical Association’s push for states to pursue liability protections for healthcare professionals during the COVID-19 emergency. Our prior post in this series can be found here.
It has been more than a century since a truly all-enveloping, global pandemic has cut deep into the day-to-day lives of so many people. Discussions of the coronavirus or COVID-19 invariably include at least brief references, if not substantive comparisons, to the global pandemic of 1918-1919, in which more than 600,000 Americans perished. The world-wide death toll is still uncertain, with estimates of 20,000,000, to 50,000,000. Fortunately, at least for now, the current pandemic is not expected to be so devastating. Still, these two pandemics share many features, including the boundless heroism and courage of healthcare providers, both in the high-profile, as well as the seemingly small roles in combatting the virus and saving lives.
As the United States makes its way into the third month of dealing with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future. As much as it seems wrong to have to consider this specter, several states have not only been anticipating it, they have taken action to shield certain healthcare providers from legal liability. For example, on April 1, 2020, Illinois Governor JB Pritzker entered an order to protect state employed healthcare workers and state-directed healthcare workers from civil liability for claims arising out of care provided to COVID-19 patients. Other states taking similar action include AL, AR, AZ, CT, GA, IL, MA, MI, MS, NC, NJ, NY, RI, VT.
Some might say such action is unnecessary – after all, who would sue these brave healthcare providers who risked and continue to risk their own health? The fact is that there are already COVID-19 solicitations on the websites of numerous plaintiff lawyers. Many of those focus on long term care facilities, but there is every reason to think that plaintiff lawyers’ groups and think tanks around the country are already working on different strategies to bring legal actions for COVID-19 care.
Much continues to be written about how to prevent or lessen the spread of COVID-19. Over the coming few days we will instead be providing a series of blog articles that delve into potential dangers for healthcare providers and offer observations about possible defense strategies.
Watch for our next post in this series, which considers the “standard of care” for healthcare providers during this global pandemic.
Long-term care facilities face many challenges, and the COVID-19 pandemic appears to be yet another significant challenge for these facilities. Their resident population includes those most vulnerable to illness or death from coronavirus because of advanced age and compromised immune systems. Plaintiffs’ attorneys are advertising their services to the families of those exposed to coronavirus in long-term care facilities. Each day the numbers of cases and deaths rise, increasing the litigation potential.
There are over 1 million residents in long-term care facilities in the United States, with millions more receiving hospice care and long-term care from home health agencies. As of March 30, more than 400 of approximately 15,000 long-term care facilities in the United States reported coronavirus outbreaks amongst residents, staff or both. On April 2, the Associated Press reported approximately 2,300 confirmed coronavirus cases in long-term care facilities and 450 deaths, a mortality rate of nearly 20 percent.
Some are blaming a lack of supplies, poor staffing, inadequate policies and procedures, and the failure to follow guidelines published by the Centers for Disease Control and Prevention (CDC) and Center for Medicare & Medicaid Services (CMS) as contributing factors for the spread of the virus and resulting deaths. Medical experts are sure to disagree about the standard of care during this public health crisis and the feasibility of mitigating the spread of coronavirus in long-term care facilities.
So, what can long-term care facilities do to prepare for potential litigation or avoid it altogether? There may be no foolproof way to prevent litigation, but certain strategies, when employed correctly, may help to mitigate risk.
- To the extent feasible, follow CMS and CDC published recommendations and guidelines for pandemic response, for example:
- Restricting all visitors, with exceptions for compassionate care, such as end-of-life situations;
- Restricting volunteers and nonessential health care personnel and other personnel (i.e. barbers);
- Cancelling group activities and communal dining; and
- Implementing active screening of residents and health care personnel for fever and respiratory symptoms;
- Ensure adherence to pandemic policies and response plans whenever possible;
- When practical, separate residents who have tested positive for coronavirus and care for them in a separate area of the facility;
- When practical, limit the staff caring for those who have tested positive and do not allow the same staff caring for those who have tested positive to care for those who are well;
- Maintain resident records, staffing and scheduling records, and visitor records in accordance with facility policies and procedures;
- Keep resident family members apprised of the condition of residents who are ill; and
- Keep residents and their family members informed of changing facility policies and procedures, posting and providing copies of any changes to residents and their family members whenever practical.
*A full list of CDC guidance to nursing homes can be found here.
Though numerous states are currently considering or have already passed legislation shielding health care workers and facilities from civil liability for their efforts to treat COVID-19 patients and prevent the spread of coronavirus, it is not yet clear whether these bills will apply to long-term care facilities and the care provided at those facilities. No matter the implications of proposed immunity legislation on long-term care facilities, facilities should continue to do their best to keep residents and staff safe during this extraordinary pandemic and review and amend policies and protocols as new issues arise.
The U.S. Department of Health and Human Services (“HHS”) has announced a plan of enforcement discretion regarding telehealth communications and testing sites during the COVID-19 Nationwide Public Health Emergency. As a result, HHS will not impose penalties for covered healthcare providers’ noncompliance with HIPAA in connection with the good faith provision of telehealth during the emergency. Roger Severino, Director of the HHS Office for Civil Rights (“OCR”), explained the decision was motivated by a desire to, “empower[..] medical providers to serve patients wherever they are during this national public health emergency. We are especially concerned about reaching those most at risk, including older persons and persons with disabilities.”
As a result, any covered healthcare provider may use any non-public facing remote communication product, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype, to provide telehealth to patients. Notably, Facebook Live, Twitch, TikTok, and similar video communication applications are considered by OCR to be public facing, and should not be used in the provision of telehealth.
HHS’s exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19. Providers are encouraged, however, to enable all available encryption and privacy modes when using technology, as well as notify patients that the use of technology in the provision of telehealth potentially introduces privacy risks.
As an example, a provider could, in the exercise of professional judgement, utilize a cell phone video chat application to examine a patient exhibiting COVID-19 symptoms. This practice would permit the provider to evaluate a larger number of patients while also limiting the infection risk associated with in-person consultation. During the public health emergency, the provider could provide those same telehealth services to assess or treat medical conditions unrelated to COVID-19.
HHS has published a bulletin advising covered entities of further flexibilities available to them as well as obligations that remain in effect under HIPAA as they respond to crises or emergencies.
In addition to its decision regarding telehealth, HHS has announced it will exercise enforcement discretion for violations committed by covered healthcare providers in their work with community-based testing sites during the emergency. As part of the overall effort to increase mobile testing sites across the country, Director Severino explained enforcement discretion in this area “supports these critical efforts to test and diagnose patients during this nationwide emergency."
Unlike the decision regarding telehealth, OCR’s position on mobile testing sites applies only to certain health care providers, including some large pharmacy chains, that are only offering COVID-19 specimen collection or testing. During the emergency, OCR will not penalize healthcare providers for HIPAA violations stemming from "good faith uses and disclosures of protected health information by business associates for public health and health oversight activities.”
Covered healthcare providers should be cognizant, however, of the potential interplay between the HHS’s decision on enforcement discretion and Missouri law addressing the fiduciary duty of confidentiality and nondisclosure of protected health information. Thus, absent federal or state legislation shielding healthcare providers from civil liability for COVID-19 related services or other services during the public health emergency, providers could still face potential litigation for claimed monetary damages stemming from improper disclosure of protected health information.
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