Legal Insight

Liability and Beyond:

The Evolving Legal Landscape of COVID-19 for Healthcare Providers

Gregory T. Measer and Vincent M. Miranda

It has been several weeks since WNY entered Phase 4 of the state’s reopening plan, but the reality has set in that this pandemic is far from over. As more people continue to go back to work and school reopening plans are implemented, there are many questions still looming about public exposure to COVID-19. Things remain especially difficult in healthcare facilities as providers continue to balance treatment of COVID-19 with the return of elective surgeries, the potential influx of patients that have avoided seeking preventive services since March, and new HR regulations and executive orders. At top of mind for many healthcare providers throughout the pandemic is potential liability deriving from treatment or the workplace.

Federally, legislation has aimed to lessen healthcare worker liability and increase funding for healthcare services and testing. The Coronavirus Aid, Relief, and Economic Security (CARES) Act limits liability for volunteer healthcare professionals during the COVID-19 emergency response and the Public Readiness and Emergency Preparedness (PREP) Act provides narrow liability protections for those involved with the distribution and use of COVID-19 medical products. However, since the start of the pandemic, Congress has yet to find common ground for broad liability protections that apply to businesses, healthcare providers, and schools. It is possible that the next round of COVID-19 relief from Congress could include such protections to businesses.

In New York, Governor Cuomo issued two Executive Orders in March 2020 to limit healthcare worker liability and to allow more flexibility in treating patients remotely and across state-borders. In April, he signed the Emergency or Disaster Treatment Protection Act to protect all healthcare workers and facilities from liability for care impacted by the public health emergency. However, in August legislation was signed to prospectively narrow that immunity to only those healthcare workers who are treating patients with COVID-19, thereby removing protections for the care of non-COVID-19 patients, which, in the event of another surge in cases, could be significantly affected by the added stress on the healthcare system. Without uniform protections across the state or the country, patient liability cases will continue to be looked at case-by-case.

In addition to liability concerns related to the treatment of COVID-19, healthcare practices and facilities have had to interpret, adopt, and implement, on the fly, a host of new measures and policies inside the workplace to handle the influx of federal legislation and state executive orders meant to protect workers and provide them new benefits. Like the federal government, New York has also not provided any broad liability protections for employers in response to COVID-19. As soon as workforces found a rhythm working remotely, an easing in New York and some Northeastern states of stay-at-home and quarantine restrictions has found employers trying to adopt sometimes mandatory re-opening plans, which require a complete re-imagination of the inperson workplace to promote social distancing and limit the spread of COVID-19. In New York, the Department of Labor has been randomly auditing workplaces to determine whether businesses are complying with COVID-19 workplace requirements.

As healthcare providers have found, it is not easy to completely mitigate the spread of the virus within their workplace. The reoccurring situations of an employee contracting COVID-19, developing symptoms, or coming into close contact with a positive individual requires healthcare providers to have a response plan in place that includes contact tracing and cleaning protocols based on CDC guidance. If the health risks of COVID-19 in the workplace were not enough, the virus has gifted businesses a headache of potential leave issues that employers must untangle between the ADA, FMLA, and the Families First

Coronavirus Response Act (FFCRA). As reinforced recently by a New York Federal Court striking down a provision that granted immunity from having to provide FFCRA leave to healthcare employees, healthcare providers should be working with their professional service providers to understand the dizzying array of COVID-19 legislation that employers must unpack to ensure their workplaces are compliant.

Healthcare providers are facing an unprecedented strain on resources and a constantly evolving landscape of standards of care, testing, telehealth, and investigational products. As confirmed cases exceed 5 million in the United States, and over 400,000 in New York alone, it has become inevitable that many will come in contact with someone carrying the virus. That is why it is important now to follow guidelines, refine policies, and take reasonable steps to protect providers and patients, such as procuring necessary personal protective equipment, enhanced cleaning and sanitizing of workspaces, and social distancing when possible. These steps, though burdensome on top of other responsibilities, can help to minimize risk and maximize the ability to continue protecting others. Much like healthcare workers, reasonable precautions to prevent further spread of the virus are essential.

For more information on this topic, please contact Lippes Mathias attorneys, Gregory T. Measer (gmeaser@lippes.com) or Vincent M. Miranda (vmiranda@lippes.com) at 716.853.5100.

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Catholic Health and local physicians form company to jointly manage orthopedic services

Catholic Health has entered a new partnership with nearly twenty local orthopedic surgeons to establish the Catholic Health Orthopedic Management Company (CHOMC), a clinical management model designed to standardize best practices, processes and procedures across the healthcare system.

With the partnership, surgeons and senior leaders are jointly managing care delivery to improve quality, patient safety, convenience, patient satisfaction, and cost efficiency within Catholic Health’s orthopedic service line. Services that fall under the service line umbrella, include knee and hip replacement, foot and ankle surgery, shoulder surgery, treatment of fractures and dislocations, hand surgery, orthopedic spine surgery, sports medicine, and treatment of other orthopedic related conditions.

“This team-based management model between our hospitals and surgeons is a unique approach to managing orthopedic surgical services across our system and specific aspects of care delivery,” noted Andrew Stoeckl, MD, chairman of the board of CHOMC and a surgeon with Excelsior Orthopaedics.

CHOMC is managed by a board of directors, with representatives from both Catholic Health and the participating orthopedic surgeons serving on three committees – Operations & Efficiency, Growth & Development, and Quality & Outcomes.

The group spent much of 2019 working closely with a consultant to designing the one-of-kind management model. Collaborating with a diverse set of surgeons from different medical practices, including Excelsior, UBMD Orthopaedics & Sports Medicine, Trinity Medical, Buffalo Medical Group, and WNY Knee and Orthopedic Surgery PC, the group’s goals are to improve patient outcomes and the patient experience, while controlling costs.

According to Walt Ludwig, president of Kenmore Mercy Hospital and Catholic Health’s lead executive for the orthopedic service line, “Engaging, aligning and integrating with physicians is a high priority in our management model. Having surgeons serving on our board and committees ensures that this is a true partnership.”

With orthopedic surgery performed at Kenmore Mercy, Mercy, Mount St. Mary’s, Sisters of Charity and its St. Joseph Campus, and among the region’s high-quality outcomes at its hospitals, Catholic Health is already recognized as a premier provider of orthopedic services. With the creation of The Catholic Health Orthopedic Management Company, the healthcare system is poised to enhance quality, safety and efficiency even further.

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