April 9, 2020

QUESTION:         Physicians have been offering to provide services outside their specialty to assist with our hospital’s COVID-19 response.  However, they’re concerned that their malpractice insurance may be limited to care provided within their specialties.  Are there any other legal protections available to them?

 

ANSWER:            Yes.  There are several federal laws that would protect physicians from malpractice liability for services provided to COVID-19 patients.  The best protection is for those who volunteer their services (i.e., do not bill or otherwise receive compensation).  State law should also be reviewed, as many states have similar protections.

None of the following statutes can prevent a lawsuit from being filed, and none provide absolute protection to health care professionals.  However, they should provide reassurance to professionals who provide services that might fall outside the limits of their insurance policies.

  1. CARES ACT

The federal Coronavirus Aid, Relief and Economic Security Act (CARES Act) was passed on March 27, 2020 to address the COVID-19 pandemic.  Section 3215 of the CARES Act states broadly that:

a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency with respect to COVID–19 declared by the Secretary of Health and Human Services…

Importantly, the CARES Act applies only to “volunteers,” which means the Act does not apply to professionals who bill third party payors for their services or who receive any other compensation.  The only exception is that mileage and lodging can be provided to those who travel more than 75 miles to volunteer their services.

The CARES Act applies to professionals who provide “health care services,” which is defined broadly to include “the diagnosis, prevention, or treatment of COVID-19” or “the assessment or care of the health of a human being related to an actual or suspected case of COVID-19.”  Thus, any action taken by a volunteer with respect to a suspected or actual COVID-19 patient should be covered.  However, the CARES Act wouldn’t apply to physicians who volunteer to treat non-COVID patients to relieve the burden on those treating COVID patients.

The CARES Act also requires health care professionals to be providing services “within the scope of the license, registration, or certification of the volunteer.”  This will not pose a problem for physician volunteers, but non-physician volunteers should be careful not to exceed their licenses.

Not surprisingly, the CARES Act does not apply to willful or criminal misconduct.  Most of the laws described below have a similar limitation.

  1. PREP ACT

The federal Public Readiness and Emergency Preparedness Act (PREP Act) differs from the CARES Act in that the PREP Act is not limited to volunteers.  Health care professionals who are paid for, or bill for, their services are still covered by the PREP Act.

However, the PREP Act probably applies to a narrower set of actions by health care professionals.  The PREP Act provides legal protection to persons and entities that manufacture, distribute, administer, prescribe or use “Covered Countermeasures.”  A Covered Countermeasure is a drug, device or biological product used to treat COVID-19.  It is not clear if the PREP Act would apply to allegations that a physician failed to diagnose COVID-19 or took some other action that did not involve a drug, device or biological product.

  1. VOLUNTEER PROTECTION ACT

The federal Volunteer Protection Act (“VPA”) provides that a volunteer to a nonprofit organization cannot be held liable for harm caused by any act or omission so long as the volunteer was acting without compensation and within the scope of the volunteer’s responsibilities.

To be covered under the VPA, an individual must be a “volunteer” – which means that he or she must be volunteering for a nonprofit organization and cannot receive compensation, or anything else of value, in excess of $500 per year.

 

April 26, 2018

QUESTION:        We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history.  Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000).  He also has two other cases that are pending.  We are reluctant to grant him appointment.  At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER:            Malpractice claims can be tough sometimes.  A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims.  The risk of recurrence of a malpractice claim increases with the number of previous paid claims.  Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years.  According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state.  This may help to put your applicant’s malpractice history in perspective.  Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history.  One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose.  Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims.  The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns.  If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed.  Denying the application is a last resort that is almost never needed.

July 21, 2016

QUESTION:        We have an applicant for appointment and clinical privileges who seems to have an unusual number of malpractice cases in his history.  Do we need to do anything with this information if everything else about the applicant checks out?

ANSWER:            Every application for appointment and reappointment asks applicants about their malpractice history.  But many hospitals don’t know what to do with the information they receive. The Joint Commission requires hospitals to consider “any evidence of an unusual pattern or an excessive number of professional liability actions resulting in a final judgment against the applicant” in granting privileges. But what is “an unusual pattern or an excessive number”?

A physician’s malpractice history cannot be ignored.  Unfortunately, there is no hard and fast rule on what constitutes reasonable due diligence when it comes to reviewing these types of disclosures.  The key is to know what to look for:

  • Not all malpractice claims are created equal, so information should be obtained to understand the nature of the claims.
  • The number of claims may not tell the whole story, but patterns or trends do.
  • Don’t compare apples to oranges – know which states and which specialties are more “at risk” for malpractice claims.
  • There is a big difference between malpractice claims and malpractice verdicts.

To learn more about how to consider an applicant’s malpractice claims history, as well as other hot topics in the world of credentialing, please join LeeAnne Mitchell and Ian Donaldson this fall at The Credentialing Clinic in Las Vegas, Nevada.