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Volume 10 | Issue 11
Inside This Issue
November Edition 2020
COVID-19 Is Changing Liability Risks and Litigation in Healthcare By Bill Fleming, Chief Operating Officer The Doctors Company
Texas Heart Institute Debuts Clinical Cardiology Practice Cardiovascular Research Center See pg. 10
INDEX Legal Matters........................ pg.3 Oncology Research......... pg.5 Mental Health...................... pg.6 Healthy Heart....................... pg.8
Across the spectrum of care, healthcare delivery is changing as the COVID-19 pandemic continues, creating additional pressures to maintain patient safety and shaping new liability risks for hospitals, group practices, and solo physicians.
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nderstanding how these new risk exposures are unfolding— and how adverse events may be litigated in a courtroom environment also under strain—is the first step to taking protective measures. Mr. Fleming offers his expert insights: • What kinds of lawsuits do you expect to see linked to the COVID-19 pandemic? • Extraordinary circumstances and a steady stream of directives (and revisions thereto) from state and local governments have pressed physicians, practices, and hospitals to practice medicine in ways they never have before—or to not
practice medicine, when certain elective forms of care have been suspended by government action, often to conserve PPE and other resources. In spite of reasonable efforts under difficult conditions, it’s likely that some adverse events will be traced to this time. It is important to note that “elective” in this context does not mean unnecessary or optional. It includes important screening and diagnostic procedures such as colonoscopies, some cancer and cardiac surgeries, and most
dental procedures. Delay of elective procedures may be a source of increased litigation—many biopsies for cancer, for instance, have lately been delayed, and delay in diagnosis was already one of the most expensive areas of litigation pre-COVID19. Other delays in care many be linked to access issues. Telemedicine has been a lifesaver for many during this crisis, but some vulnerable patients may lack access. Infrastructure can also present a barrier to telemedicine care, see Liability Risks... page 14
Baylor College of Medicine Recruiting Participants for COVID-19 Prevalence Study Harris Health System’s Earns National Nursing Recognition See pg. 11
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s Baylor College of Medicine is recruiting participants for a study to determine the prevalence of COVID-19 in the Houston area. The study is part of a nationwide initiative
called the Community Prevalence of SARS-CoV-2 study (COMPASS) led by the National Institute of Allergy and Infectious Diseases (NIAID) to determine how COVID-19 is transmitted in communities. Participants will be given a free COVID-19 nasal swab test and will be asked to provide a blood sample for an antibody test to determine if they were previously infected. COVID-19 test results will be returned within 48 hours. All participants also will complete a short survey answering questions about demographics and personal experience with COVID-19 mitigation measures.
Participants will receive a gift card for their participation. “Learning how many people have already been infected with COVID-19 will allow us to understand the potential risks that contribute to see COVID-19 Study ... page 14
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Legal Matters DOJ Creates National Rapid Response Strike Force as Focus on Health Care Fraud Continues to Grow
By Brian T. Rafferty, JD Brea M. Croteau, JD Polsinelli, PC
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s COVID-19 continues to ravage the United States, the Department of Justice (DOJ) has recently announced its new National Rapid Response Strike Force within the Health Care Fraud Unit to investigate and prosecute fraud cases involving major health care providers that operate in multiple jurisdictions. The newly created Strike Force will focus on the investigation and prosecution of individuals and corporations, and cases like the large-scale rural hospitals billing fraud matter indicted in the Middle District of Florida and the global resolution with
Tenet Healthcare Corporation and related individual prosecutions will be within the purview of the Strike Force. Those cases involve a range of alleged violations of federal statutes, including healthcare fraud, conspiracy, and the Anti-Kickback Statute. The Strike Force relies on data analytics to target fraudulent activities, as opposed to the traditional reliance on whistleblowers and qui tam actions in the health care arena. Additionally, the Strike Force is based in Washington, D.C., with experienced investigators and prosecutors enabling the Strike Force to act quickly and take the burden away from local U.S. Attorneys’ offices that are inundated with complaints of COVID-related fraud. The Strike Force will also handle the prosecutions of those seeking to criminally exploit the COVID-19 pandemic through health care fraud and related financial fraud schemes. The Strike Force will handle criminal cases like the case recently brought against a North Carolina man who
fraudulently sought over $6 million in Paycheck Protection Program (PPP) loans for several entities. His PPP loan applications were supported by false statements about the companies’ employees and payroll expenses, and fake documents, including falsified tax filings. Charges, in that case, included wire fraud, bank fraud, and engaging in unlawful monetary transactions. The case was investigated by the U.S. Treasury Inspector General for Tax Administration, the FDIC Office of Inspector General (OIG), and the FBI, with the assistance of the Small Business Administration OIG. This is not the only example of a criminal case swiftly investigated and indicted in recent months specifically targeting those trying to exploit PPP loans and other COVID-related relief programs. In Texas, a woman was charged after receiving more than $1.9 million in PPP loans on behalf of two entities that neither had employees nor paid wages consistent with the amounts claimed in the loan applications. A National Football League player in Florida was indicted
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for his participation in a conspiracy to obtain more than $24 million in PPP loans, using more than $104,000 of the proceeds from the fraudulent loans to purchase luxury goods from Dior, Gucci, and jewelers. Two brothers in New York were charged with wire fraud conspiracy after submitting at least eight fraudulent loan applications in an attempt to obtain nearly $7 million in PPP loans. These examples are an indication of the explosion of criminal prosecutions related to the disbursement of COVID relief funds that is sure to come in the near future. Along with criminal prosecutions, an increase in COVID-related civil enforcement actions is also to be expected with the creation of the Strike Force. For example, the DOJ has used see Legal Matters...page 12
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University of Houston Partners with AuraVax Therapeutics on COVID-19 Vaccine Exclusive Option Agreement Covers Inhalation Vaccine Developed by UH Professor
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he University of Houston has entered into an exclusive license option agreement with AuraVax Therapeutics Inc., a Houston, TX based biotech company developing novel vaccines to help patients defeat debilitating respiratory diseases such as COVID-19. Under terms of the agreement, AuraVax has the option to exclusively license a new intranasal COVID-19 vaccine technology developed by Navin Varadarajan, M.D. Anderson Professor of Chemical and Biomolecular Engineering. Varadarajan is also a co-founder of AuraVax. The vaccine is a nasal inhalant, like FluMist. “We plan to stop COVID-19, a respiratory virus, at its point of entry — the nasal cavity — and we
believe our intranasal platform is a differentiated approach that will lead to a vaccine with increased efficacy to create sustained immunity to COVID-19,” said Varadarajan. “AuraVax, being created by a UH professor, is the ideal partner for us, and what better cause than to advance the creation of a vaccine to COVID-19, arguably the primary challenge facing our generation. The partnership has my wholehearted support,” said Amr Elnashai, University of Houston vice president for research and technology transfer. The race for more effective ways of vaccinating against COVID-19 and other respiratory diseases has led to a broad and extensive focus on various protective mechanisms of action. Based on pre-clinical work,
Varadarajan reports his technology not only elicits a mucosal immune response, but also systemic immunity. “For airborne pathogens, the nasal compartment is the first point of defense that needs to be breached,” said Varadarajan. “Mucosal immunity and vaccines are fundamentally important for a wide range of pathogens including influenza, severe acute respiratory syndrome coronavirus (SARS-CoV) and the current SARS-CoV-2.” Varadarajan is using the spike protein, which helps the virus enter the target cell, and is the major target for neutralizing antibodies as it binds to the ACE 2 cellular receptor, for virus entry. He prefers using proteins
because of their ability to induce strong immune responses, flexibility and scalability, and the absence of infectious particles. “We believe AuraVax has a competitive advantage given the immune responses and a supply chain that is well-suited for widespread distribution and self-administration distribution,” said Varadarajan. “We are excited to be collaborating with the University of Houston and look forward to future success by advancing the development of this novel intranasal vaccine technology to address a multitude of respiratory viruses, starting with COVID-19.”
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Oncology Research Three Things to Know Before You Cancel Your Mammogram By Susan Escudier, M.D., next 10 years from breast and colorectal FACP, Texas Oncology– Houston Medical Center cancer alone as a direct result of failure
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ore than six months into the COVID-19 pandemic, fears are growing about the long-term impact on cancer rates. Put simply, Americans are skipping their screenings and the potential consequences are a major concern of oncologists. The pandemic has made life infinitely more complex, but what hasn’t changed is the principle of cause and effect. How we take care of ourselves today will directly impact our future health. The stakes are high for women, especially when it comes to breast health. According to the Health Care Cost Institute, mammograms fell 77% at the height of the pandemic and were still down 23% at the start of the summer. What’s more, data from the National Cancer Institute projects as many as 10,000 additional deaths during the
to get screened during the pandemic. While these statistics are concerning, there’s still time to reverse the trend and prioritize breast health. Mammograms can detect breast cancer in its earliest stages, often before women experience symptoms, and remain the single most important tool for prevention and early detection. Don’t let fear of COVID-19 deter you from prioritizing your health. Consider the following key factors and do not cancel your mammogram. Mammograms are the most reliable way to identify breast cancer early. According to the American Cancer Society (ACS), the size of a breast cancer and whether it has spread to other parts of the body are among the most important factors in predicting a woman’s outlook upon diagnosis. Mammograms are crucial to this process, and help doctors determine whether additional tests, such as biopsies, are required. The ACS reports that mammograms can detect changes in a woman’s breast that could indicate
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cancer years before physic a l sy mptom s develop. Family health history may determine a woman’s risk for developing breast cancer. Lifestyle-related factors, such as diet, alcohol consumption, and exercise are among the cancer risk factors women can influence by their habits and health behaviors. However, when it comes to breast cancer, there are other risk factors that are determined for you, such as family health history. Women with a first-degree relative, such as a mother, sister, or daughter, who had breast cancer before age 50 are considered higher risk of developing breast cancer. Genetic testing can help determine if a woman has a genetic disorder that may increase risk of breast cancer, like the BRCA gene. Medical offices are taking extra safety precautions to conduct screenings safely during COVID-19. Temperature screenings at the clinic door, face mask and social distancing requirements, visitor restrictions to reduce clinic traffic, are some of the safety measure clinics across the state have implemented to
keep patients protected at screenings and appointments. If you’re nervous about an in-person visit, ask your doctor about a telemedicine appointment before you cancel your mammogram. Your doctor can advise you on the best time to get screened. In a world that sometimes feels out of control, we are grounded in the things that are constant and expected – including the importance of cancer prevention. The Texas Cancer Registry estimates 18,478 new breast cancer cases with nearly 3,300 deaths in Texas in 2020. Please join me in encouraging women everywhere to advocate for their health with routine cancer screenings, even amid COVID-19. Together, we can fight breast cancer.
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Mental Health 4 Reasons to Keep Laughing (Instead of Crying) Humor is a Powerful and Overlooked Tool for Coping With Today’s Challenges. By Isaac Saldivar, PhD
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he People all over the world have been affected by COVID-19 in some way. Our normal routines have been shattered. Washing our hands, keeping a safe physical distance, and worrying about contracting or spreading the virus is our new norm. There are people amongst us who have lost their jobs and incomes, and unfortunately for some, their loved ones. Humor or laughter is probably the last thing on their mind. So, this begs the question: During these difficult and challenging times, is it OK to laugh? Absolutely! As a psychiatrist who works with patients and who has personally experienced traumatic events, I actively look for opportunities to interject appropriate humor into daily life. Consider these four ways that humor can be a powerful and effective tool in coping with today’s challenges.
1. Social Benefits and Connectedness We are all social beings. Our ability to connect with one another ensured our survival, from an evolutionary perspective. Social isolation due to “stay-at-home orders” has resulted in many people feeling lonely and alone. This is especially hard for individuals with pre-existing mental health issues. With technology, though, we can try to “virtually” connect with one another. When we share, we feel accepted and connected to one another. We can share a funny video or story, humorous anecdotes, and smiles. I remember when someone shared with me the image of someone holding a bouquet made out of toilet paper, rather than flowers, poking fun at the amount of toilet paper people were buying. 2. Stress Reduction and Physical Health Benefits We all know that stress is
hazardous to our health. It may lead to cardiovascular problems, such as hypertension and heart attacks, and mental health problems, such as depression and anxiety. Numerous studies show the benefits of laughter in combating stress. Laughter reduces physical tension and stress by relaxing our muscles, as well as decreasing levels of the stress hormone, cortisol. For individuals with underlying medical conditions, humor and laughter may provide some extra protection. By dilating blood vessels, it lowers blood pressure, reducing the risk for heart attacks and strokes. Our immune system also gets a boost by increasing the production of T cells ready to fight infections. A 15-year follow-up study from Norway showed the death rates from infection were actually lower in patients who utilized humor. Even though not a replacement for physical exercise, when I laugh extra hard, I feel as if I just had an abdominal muscle workout! 3. Psychological Health Benefits
We are creatures of habit and routine. With COVID-19, we had to change our daily activities almost overnight. With schools closed and more people staying at home (either losing their job or working from home), we see more couples and families spending time together at home, longer than ever before. Imagine any family conflict during Thanksgiving, only amplified many times more. We are prone to negativity and secondary traumatic stress symptoms. Keeping a lighthearted approach to life serves a protective function. It helps us broaden our mind and put things into perspective. It helps us view adversity as an opportunity to reevaluate our priorities in life. We can appreciate being able to spend more time with family, having less see Mental Health...page 12
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Healthy Heart 5 Simple Strategies for Healthier Holidays By The American Heart Association
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merican Heart Association’s Healthy for Good™ movement offers simple tips for self-care this season Nourishing yourself is smart for your heart and an effective way to take control of your health during the holidays. During Eat Smart Month this November, the American Heart Association, the leading voluntary health organization devoted to a world of longer, healthier lives, offers its latest recipes and science-backed tips to help you be Healthy for Good™. “The holidays can present nutrition challenges and additional stressors, but simple changes and investments in your own health can make an impact on your well-being and help you enjoy the season even
more,” said Jo Ann Carson, PhD, RD, retired professor of clinical nutrition in Dallas and past volunteer chair of the nutrition committee of the American Heart Association. “Start small by making one more healthy choice today and build on it tomorrow.” Focus on small, consistent steps. The American Heart Association’s Healthy for Good Eat Smart Initiative offers five tips for nourishing yourself this holiday season: 1. Get creative with swaps: Cooking at home is a great way to take control of your diet and tweak favorite seasonal dishes. Reduce sodium by replacing salt with herbs and spices, adding more fruits and vegetables to dishes, and using lower-sodium canned and frozen products. 2. Snack smart: To avoid overindulging during the holiday season, prep with nutrient-rich foods that don’t sacrifice taste. Look for snacks that will keep you feeling full and less tempted by those unhealthy choices. November 2020
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3. Take your time: Don’t rush through meals. Enjoy mealtime by pausing between bites and savoring your food. 4. Use time-saving technology: Many grocers make it easy to shop deals and save time with online ordering and pick-up and delivery options. Plus, it’s easier to resist that candy bar in the checkout line if you aren’t in a staring contest with it. 5. Practice gratitude: It can help lower blood pressure, improve your immune system, and spur you to eat better and exercise more. Write down five things you’re grateful for and share them with your family and friends. Gratitude is the gift that keeps on giving. For more healthy tips and recipes
visit heart.org/eatsmartmonth. Another tenet of the Heart Association’s Healthy For Good movement is Move More. A great way to get moving this month is to participate in one of the five Greater Houston Heart Walks, held November 5th and November 12th on Facebook (@AmericanHeartTX), that encourage participants to #walkwhereyouare. Tom Stewart, Vice President of Southeast Region Sales and Account Management of Blue Cross Blue Shield of Texas, said, “As a long-time supporter of the American Heart Association in Houston, Blue Cross Blue Shield is proud to sponsor the Houston Heart Walk and continue to make strides toward ending heart disease and stroke. Houston is our home and we want our families, friends and neighbors to move more and be well, especially now, when you can walk and be active wherever you are.”
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Texas Heart Institute Debuts Clinical Cardiology Practice Cardiovascular Research Center Will Harness the Full Breadth Of Its Storied History, Ushering In New Era With The Opening of Texas Heart Medical Group Houston, TX
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exas Heart Institute (THI) – the internationally lauded research and educational center dedicated to the prevention and care of heart disease – is once again raising the bar with the long-planned official debut of Texas Heart Medical Group (THMG). THMG represents a significant step into the future for the institution, which has played a critical role in major cardiovascular breakthroughs since its founding in 1962 by legendary heart surgeon Dr. Denton Cooley. When Dr. Cooley established THI nearly 60 years ago, his mission statement for the non-profit at Texas
Medical Center was simultaneously simple and bold: namely, reduce the devastating toll of cardiovascular disease through innovative programs in research, education and improved patient care. Texas Heart Institute is now breathing new life into Dr. Cooley’s original vision as the institution readies to open its clinical practice specializing in cardiovascular care with the singular mission to provide the highest-quality medical care in a sophisticated and welcoming patient-oriented atmosphere. They started seeing new and existing patients on October 1, Texas Heart Medical Group will serve as home
Texas Heart Medical Group
base for twelve outstanding cardiologists who are also leaders in the subspecialty fields of Cardiac Imaging, Interventional Cardiology, Peripheral Vascular Disease, and Electrophysiology. Texas Heart Medical Group will embody the totality of Texas Heart Institute as a fully integrated clinical cardiology practice encompassing the areas of education, research and direct patient care. An exciting day in the history of the Texas Heart Institute. With the launch of Texas Heart Medical Group, THI will usher in a dynamic new era as it enters into the clinical care arena,” stated Texas Heart
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Institute Board Chair Eric Wade. He added, “Texas Heart Medical Group will tap into Texas Heart Institute’s longstanding and relentless pursuit of excellence that began with the historic breakthroughs under Dr. Cooley’s leadership and vision. I am confident in saying that he would be proud of and excited for this new chapter in THI’s dramatic story.” To date, Texas Heart Institute has focused solely on research and education in affiliation with St. Luke’s Episcopal Health (now CHI St. Luke’s Health - Baylor St. Luke’s Medical Center). From the outset, see THI...page 12
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Harris Health System’s LBJ Hospital Earns More National Nursing Recognition
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arris Health System’s Lyndon B. Johnson Hospital has earned its re-designation as a Pathway to Excellence® hospital, its second national nursing recognition in less than a month. It comes on the heels of LBJ Hospital achieving Magnet recognition in September, the acknowledged gold standard for nursing excellence. Both recognitions are given by the American Nurses Credentialing Center to hospitals that promote high-quality patient outcomes through a robust nursing program that works in coordination and collaboration with all aspects of hospital staff to provide evidence-based patient care. “This has been a remarkable year for LBJ Hospital,” says Derek L. Curtis Sr., DNP, MA, RN, NEA-BC, chief nursing officer, LBJ Hospital. “We are thrilled to receive two American Nurses
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Credentialing Center designations in the same year. This accomplishment reflects our continuous pursuit of excellence. We are committed to creating a positive practice environment that empowers and engages staff as we light the way for excellence in patient care.” LBJ Hospital is one of 192 Pathway designated hospitals in the nation and the fourth hospital in 2020 to achieve Magnet recognition from the ANCC Magnet Recognition Program®. LBJ Hospital joins the exclusive lists of 43 Pathway and 51 Magnet hospitals in Texas. “Each day, the LBJ Hospital team inspires me with their unwavering commitment to excellence in patient care, even when the work we do is framed by a global pandemic,” says Patricia Darnauer, executive vice president and administrator, LBJ Hospital. I’m proud of what we do here every single day and these recognitions highlight why we are an invaluable resource for Harris County residents.”
online survey. According to the Pathway to Excellence® web site, the program recognizes healthcare and long-term care organizations for positive practice environments where nurses excel. Pathway organizations foster supportive leadership, inter-professional collaboration, nurse development and work-life effectiveness. To achieve Pathway designation, organizations must meet the six essential standards to an ideal nursing practice environment. Applicants undergo a vigorous review to fully document the integration of those standards in the organization’s practices, policies and culture. Hospitals designated as Pathway to Excellence are recognized for their outstanding patient care and outcomes, as well as nursing measures such as: • Improved nurse satisfaction • Retention of highly-qualified nursing staff and leaders • Champions of high-quality nursing practices medicaltimesnews.com
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Legal Matters
Continued from page 3 enforcement actions to shut down more than 300 websites that fraudulently purported to sell products that became scarce during the pandemic, including hand sanitizer and disinfectant wipes. Thousands of victims throughout the United States paid for items through these websites but never received them. The DOJ also reported having received more than 3,600 complaints
Mental Health
Continued from page 6 traffic on the roads (while it lasts), and taking on old or new hobbies and activities. 4. Happiness Promotion How we choose to respond to the world can determine our degree
THI
Continued from page 10 Dr. Cooley designed an organizational structure which coordinated care at the THI-affiliated hospital partners. Texas Heart Institute did not directly treat patients under the THI umbrella,
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about COVID-related online scams less than two months into the declared pandemic, which will certainly result in additional civil enforcement actions. The broad array of investigative agencies involved in the cases brought thus far demonstrates the vast resources available to the Fraud Section in conducting these investigations. These investigations are not just run by the well-known federal investigative agencies, such as the FBI, Secret Service, and IRS, but also include lesser-known, but equally
aggressive investigative agencies like the FDIC-OIG, Board of Governors of the Federal Reserve, Small Business Administration OIG, Bureau of Consumer Financial Protection OIG, the Federal Housing Finance Agency OIG, and the U.S. Treasury Inspector for Tax Administration. The participation of such a large number of investigative agencies is reminiscent of the federal government’s response to prior crises, such as the financial crisis of 2008, and portends significant enforcement activity by the Fraud
Section. With the continued distribution of CARES Act funding as a part of the response to COVID-19, the number and scope of investigations conducted by this newly formed Strike Force will undoubtedly grow. All recipients of CARES Act or other COVID-19 relief funds should be aware of the increasing focus of the DOJ on COVID-related fraud, and should be aware of the requirements for compliance in properly utilizing these funds.
of happiness. Humor seems to demonstrate how “happiness comes from within.” Multiple studies have shown that adults who use certain styles of humor tend to be happier. In particular, affiliative humor makes us more empathetic while enriching the quality of our social relationships. Self-enhancing humor
helps us maintain or enhance our positive psychological well-being while distancing ourselves from adversity. It helps us manage reality by reflecting and responding to threats rather than feeling utterly out of control. Sharing humor is, in some ways, akin to sharing happiness. Humor Is No Laughing Matter
It is no wonder that we keep on watching funny TV shows or movies, stand-up comedians, and late-night political satire. It makes us feel better. With all the evidence on how humor can be beneficial, a more appropriate question then is not, “Is it OK to laugh?” but instead, “What are you waiting for?”
though it quickly blossomed into “the most prolific heart surgery center in the United States and possibly the world,” as the iconic surgeon wrote in his own words. “The leading physicians in the Texas Heart Medical Group who are members of the THI Professional Staff, are eager to blaze a new trail
and practice top tier cardiovascular medicine through this clinical group,” emphasized Dr. Emerson Perin, Texas Heart Institute’s Medical Director. He added, “The founding physicians at THMG have upheld the same standards of excellence set forth by Dr. Cooley, spanning decades of collective experience in the practice of
cardiovascular medicine and clinical investigation. In the spirit of the Cooley legacy, we are joining together as a body of clinicians, surgeons and scientists with a unified ethos to take Dr. Cooley’s core mission far into the 21st Century.”
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Liability Risks
Continued from page 1 as some do not have sufficient internet bandwidth for video visits. Moreover, circumstances have forced physicians to use telemedicine in ways they usually might not. Telemedicine is ideally an adjunct to in-person care, and therefore not the best option for a first visit with a new patient, but during peak infection risk, exceptions had to be made. Among our infrequent telemedicine claims pre-COVID-19, misdiagnosis of cancer was the top allegation, and I can’t imagine that risk of misdiagnosis has decreased, given the spike in telemedicine usage under nonoptimal conditions. Also, I anticipate that some COVID-19-related cases will focus on shortages of personal protective equipment (PPE)—those claims may come from patients or employees. • As you’ve said, providers are delivering care differently during COVID-19. How do these changes diminish or increase risks? • In the crush of managing a public health crisis, many hospitals and practices have had to take temporary measures that impact patient safety: Some of these measures mitigate certain risks but may amplify others. Healthcare providers in hard-hit areas are working longer hours, sometimes with insufficient PPE, sometimes in large tents put up in parking lots or other overflow sites. In surge locations, staff from other departments may be covering in the emergency department (ED) or intensive care unit (ICU)—this is could increase the risk of communication gaps. All of these resource-stretching measures, taken together, may add up to a risk profile that is more than the sum of their parts. While responding to health
COVID-19 Study
Continued from page 1 further development of the pandemic and the impact that vaccination and improvements in therapy will have on our populations,” said Dr. Chris Amos, principal investigator of the Baylor study, director of Baylor’s Institute for Clinical and Translational Research and associate director of population and quantitative science at the Dan L Duncan Comprehensive Cancer Center at Baylor. In addition to prevalence, researchers also will study demographic and social risk factors and medical November 2020
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directives from state and local governments, as well as advisories from the Centers for Disease Control and Prevention (CDC) and other trusted sources, hospitals and practices will continue to experience unavoidable delays in treatment to all patients. Testing delays do not help. In addition, by patient preference, many routine checkups and tests have been delayed, not to mention routine procedures. Adverse events linked to these delays could affect physician liability. • What can physicians and practices do to protect themselves during the pandemic? • Conscientious documentation becomes a witness for the physician in the courtroom. In the COVID-19 era, practices may benefit from documenting not only individual patient interactions, but how the practice is following CDC infection control guidelines and recommendations from state and local health authorities at particular points in time. This could be as simple as jotting a daily note in an electronic calendar. • How are courtroom changes during the pandemic challenging defense teams? • In a recent medical malpractice suit, a physician member of The Doctors Company, with assistance of counsel and The Doctors Company’s support, secured a defense verdict despite many changes in the courtroom environment that could have posed problems if we had not been prepared to adjust. We’ve seen firsthand how physicians facing a court hearing during COVID-19 need a legal team that is prepared for changes in depositions, jury selection, and the trial itself. For instance, depositions may be completed by video, with multiple screens for the attorneys, parties and exhibits, and jury selection may take place partly
via written communication. During trial, showing evidence must be done differently, so defense teams need solid technology skills in settings where counsel can publish exhibits to the jury using large screens. Some courts are taking 15-minute breaks every hour for better ventilation and cleaning. This breaks the momentum when an attorney is speaking with a witness, reduces the overall trial time per day, and prolongs the trial duration. Taking time out of a practice to participate in an extended trial can further stress a stretched practice. • Litigation stress places a burden on physicians at any time. How is this different during the pandemic? • Individual trials are taking longer, compounding delays from the existing backlog. This keeps physicians in limbo—and could even affect their credentialing. As previously reported by RAND, pre-pandemic, on average, physicians were already spending more than 10 percent of their careers living under the shadow of an open malpractice claim. It is true that at any time, even the best of physicians could find themselves facing an unexpected lawsuit. And states around the country handle cases differently. That’s why our members are supported by legal teams with deep roots and expertise in members’ local venues. In addition, knowing that the stress of malpractice litigation affects physicians deeply, and knowing that preparation is the key to victory, we support our members through in-depth litigation preparation. Like the COVID-19 pandemic itself, pandemic-related risk exposures are fluid. Physicians, practices, hospitals, and systems are facing rapid changes in liability exposures at the same time as the day-to-day business of healthcare is changing under their feet.
co-morbidities associated with infection. Data collected in the study will be used to inform mathematical models of disease progression and projections of future disease risk. COMPASS organizers will recruit a diverse group of participants that reflects the ethnic, age and gender make-up of the U.S. population. Nationwide, the study will collect samples from about 70,000 individuals, with about 4,000 of those participants coming from the Houston area. Participants will be recruited at community gathering spots like grocery stores, churches and parks as well as nursing homes and healthcare centers. In order to ensure selected individuals
are similar to their community, the study will set up facilities at the different sites and randomly ask individuals to participate in testing and sample collection. The study is part of a $20 million initiative by the National Institutes of Health to understand the prevalence of COVID-19 infection. Results will allow researchers to estimate how many members of the Houston population have already been infected by COVID-19 and determine the current burden of COVID-19 infection. For more information on the study, contact Amos at chris.amos@ bcm.edu
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