What are some of the steps that healthcare facilities and providers, as well as insurers and defense counsel, can take now to put themselves in a better position to defend these claims in the future?
SS: By the time COVID-19 and pandemic related cases come to resolution or trial, parties' (and jurors) memories may have faded as to how seismic the changes in healthcare delivery were at this time.
Contemporaneous documentation of key factors that impacted care delivery is critical. For example, facilities and providers should be keeping a detailed timeline of all significant milestones, including:
- The date of declaration of a state of emergency;
- The date of the first case of COVID-19 at the facility;
- Dates and details of when and how COVID-19 testing became available and how it was implemented;
- Dates and details of staffing shortages, and/or reassignments;
- Dates and details of shortages or rationing of PPE and/or ventilators;
- Dates and details of any modifications to policies and procedures, related to patient care, visitation, etc.; and
- Dates and details of various phases of re-opening.
Additionally, patients' charts should be documented with the fact that treatment is being rendered during a national and/ or local state of emergency. Providers may want to consider having patients sign an informed consent (or informed refusal) document that acknowledges that care is being rendered or refused during exigent circumstances, with potentially limited resources and without well-defined guidelines to prevent inherent risks. Facilities and providers should also document all infectious disease safety measures implemented and track your repository of information.
Insurers and defense counsel would be well-served by collaborating with health systems to identify strong COVID-19 critical care experts now and to keep a database of these subject matter experts who have a present-day and well-documented understanding of the medical and healthcare delivery issues related to the pandemic.