Protection for Protectors

The pandemic sent shockwaves throughout the already burdened U.S. health-care system. Still, there are several measures providers can enact to ensure they’re ready for litigation should it come to pass.

Protection for Protectors

Mario C. Giannettino and Steven D. Weiner

March 31, 2021 05:05 PM

Despite the unprecedented public-health crisis created by COVID-19, government investigators, legislatures, the news media, and lawyers have all closely scrutinized health-care providers’ responses throughout the pandemic. Plaintiffs have filed lawsuits throughout the U.S. claiming that health-care facilities—nursing homes in particular—failed to adhere to regulatory requirements, lacked robust infection-control protocols, delayed obtaining personal protective equipment, didn’t maintain adequate staffing, or failed to comply in a timely manner with rapidly changing recommendations from state departments of health and federal agencies such as OSHA and the CDC.

Although many states enacted legislation designed to limit or shield providers’ liability for acts or omissions during the pandemic, those very protections are now under attack. Ultimately, some legislatures may determine that they’re no longer necessary—or may seek to modify or even repeal them.

Given the current uncertain climate, there are measures that health-care providers and facilities should already have in place—preventive efforts that could help them respond to, and defend against, the wave of potential lawsuits and agency investigations that might ensue.

Document Rigorously

COVID-19 has added a layer of complexity to the implementation of facility-wide policies and patient charting. Along with documenting the care provided to each patient, maintaining a timeline of your COVID-19 mitigation measures from their inception will be helpful.

Consider storing copies of any state or federal guidance you followed or relied on to make clinical, administrative, or environmental decisions about COVID-19 preparedness and your response. Making a detailed timeline of any changes you made, and the specific public-health authority guidance that supported them, is a good idea as well.

A point of emphasis for documentation could be personal protective equipment (PPE). At the beginning of the pandemic, you may remember , there was a national shortage of PPE due in part to inadequate supply and distribution-chain interruption. As a result, many health-care facilities simply couldn’t secure sufficient supplies. Consider documenting every effort you made to obtain PPE, as well as the obstacles you faced. You’ll want to demonstrate that you made good-faith efforts to secure PPE to help establish that you acted reasonably and appropriately under the chaotic and difficult circumstances of the pandemic’s early months.

Archive Official Guidance

Regulatory guidance is constantly evolving and being updated. Consider securing and storing and, in chronological order, all notifications received from any governing agencies. If questioned about whether you followed a particular recommendation, it would be good to have proof in hand—both as it existed at the time and if it was later modified.

Maintain an Employee Instruction and Training Timeline

Frontline health-care staff have borne extraordinary burdens and personal risk throughout the pandemic. Many contracted the virus, became sick, and faced unprecedented burnout and stress. It is therefore incumbent on providers to show that their staff was trained and educated on new or updated infection-control policies and procedures, and that they acknowledged receipt of these updates.

It’s advisable to save all coronavirus-related in-servicing documentation (including sign-in sheets), as well as any efforts made to seek and retain supplemental staffing from other sources—archiving it all by date and topic. Encourage frank discussions with your staff about what they’re experiencing and strive to provide them with emotional support. Proactive health-care organizations are generally best served by keeping their workers fully informed about mitigation efforts and any policy or procedural changes.

In addition, consider involving frontline workers in the further development of your health-and-safety protocols. It is much harder to assert that a health-care group was somehow negligent when its staff actively contributed to its safety plan.

Designate a Pandemic Team

Many facilities are under increased scrutiny for their pre-pandemic handling of infection control and are being criticized on the theory that the pandemic only heightened preexisting organizational failures.

As such, you may want to review existing protocols to determine if you’ve established defined roles and responsibilities for pandemic response planning. Consider archiving (and maintaining for two years) the responses and results of any state infection surveys and maintain current COVID-19 surveys as proof of regulatory compliance.

If current surveys showed no deficiencies, you might want to advise patients, their families, and your staff of these findings. Generally, surveys are a matter of public record, and it may be beneficial to inform the community at large of any infection mitigation and prevention successes.

Take Note of Your Environment

Although PPE shortages are consistent allegations in lawsuits filed to date, don’t ignore other infection-control supplies. Archive and document your stores of hand sanitizer and wipes, and your more frequent cleaning of door handles, countertops, kitchen areas, and bathroom equipment. Take photographs of signage that reminds patients and staff to wear face masks, regularly wash their hands, and maintain social distancing.

While it’s necessary for infection control to have documented policies and procedures in place, it’s equally important to take time to demonstrate how those measures were implemented in real time as well.

Document Patient and Family Communication

Patients’ and their families’ sense of isolation due to the pandemic remains a major concern. Families may be angry at and suspicious of health-care facilities, feeling locked out and disengaged from their loved ones. Providers have presumably been documenting all communications with families to show that they’ve been regularly apprised of measures adopted to minimize the spread of COVID-19. It’s good to maintain an archive of any letters you’ve sent to patients and families, information posted on your website or social media, and recordings of robocalls you’ve made to demonstrate that your communication efforts have been ongoing. Document as well the recipients’ replies, if any, to these measures.

The substance of any verbal discussions could be logged where appropriate, such as in the patient chart, with specific references to what was discussed, with whom, and their response. A chart entry that reads simply “spoke with family” might not be sufficient, especially as memories fade.

Similarly, saving emails from family members is a good idea. Any health-care facility likely already has in place staff guidelines about email communication, of course. Staffers don’t always appreciate that email can be used in litigation and, depending on the state, may also be introduced to contend that a provider is at fault. It’s therefore crucial that everyone understands the potential benefits and pitfalls of electronic communication outside the chart.

Coordinate from the Top Down

Practitioners’ pandemic responses affect employees at all levels, but those effects generally start at the top. Leadership, administrative, clinical, and management ought to be in close communication and strive to speak with a unified voice to provide consistent, accurate, and transparent information to staff and the public.

Finally, as previously noted, many states have enacted protections to health-care providers in recognition of their extraordinary efforts. As a further outgrowth of the pandemic, several professional liability-insurance carriers have required an endorsement on any new or renewed policies seeking to exclude coverage for COVID-19 matters and related lawsuits. As such, providers may wish to seek legal advice—including from the authors of this piece—regarding the impact of such endorsements should they face any virus-related litigation.

MARIO GIANNETTINO and STEVEN WEINER are partners at Kaufman Borgeest & Ryan LLP, which has offices in New York, New Jersey, Connecticut, and California.


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