Federal and regional disaster plans rely on physicians’ unwavering ethical obligation to treat patients, even when facing significant personal risks.
As the COVID-19 outbreak continues to spread in the United States, some healthcare systems, particularly in New York, are overwhelmed. Hospitals are running out of personal protective equipment (PPE) items like face masks, gloves and gowns. Worse, the government is unclear on what to do about this issue, as the Washington Post reports.
Indeed, the COVID-19 pandemic in our country has revealed flaws in our healthcare system and in our response to a crisis: poor emergency preparedness and execution, few reliable COVID-19 screening tests and a physician shortage that has only worsened since the pandemic began.
Added to this list is a lack of protection from liability for clinicians working in a healthcare crisis setting. Because of COVID-19, physicians are being asked — or ordered — to work outside their primary specialties with zero or minimal liability protection, exacerbating a problem that’s been brewing for years. Most people feel that physicians will absolutely work however and wherever they can, bound by ethical obligations. Yet there isn’t enough protective gear right now or supplies to go around, and physicians are working in ever-worsening conditions. This chaos just further degrades the trust medical professionals have in the very organizations that are supposed to protect them.
Here’s a look at what these pressures could mean for doctors, nurses, technologists and other healthcare workers on the front lines of the COVID-19 pandemic.
The Redistribution of Labor
Outside of the United States, where medical liability is less of an issue, physicians’ duties are shifting as COVID-19 continues to ravage the population. In Turkey, physicians of all specialties as well as preclinical doctors (residents) are taking care of patients in the COVID-19 wards, and in Slovenia, residency training has been halted and those physicians are now covering the ERs and ICUs. In Italy, all specialties are working in COVID areas, and the country is graduating medical students nine months ahead of schedule and waiving final exams to expand its workforce by 10,000 doctors, according to Channel News Asia.
We are seeing some similar changes in the U.S. Medical residents in specialties like radiology are covering the medicine floor and ICU while working under an attending physician, and questionnaires are being sent to attending physicians in most states to see if they’re comfortable with treating medicine inpatients, managing ventilators and working in the emergency department. In New York, radiologists and OB-GYNs are working on the new wards and in the emergency department, though only on a limited basis.
As the pandemic continues to wreak havoc, hospitals will be asking all physicians to roll up our sleeves and pitch in, but we will be asked to work without adequate PPE or liability protection.
After four years of medical school, an emergency room physician trains for a minimum of three years in supervised residency prior to entering the workforce. Internal medicine also requires three years. Medical intensive care demands at least five years, often six. We must be realistic: If radiologists jump in there, we will not have the same outcomes with ventilator management as physicians trained in critical care. Acute respiratory distress syndrome (ARDS) ventilator management is not as simple as ventilating an elective hernia repair.
Nonetheless, physicians from other specialties may be required to help as the number of coronavirus-positive and critically ill patients continues to rise. According to the Model State Emergency Health Powers Act (MSEHPA), healthcare professionals can be required to assist in any capacity in a healthcare crisis. At least 38 states have adopted some version of MSEHPA.
The American Medical Association’s Principles of Medical Ethics state that “a physician shall, in the provisions of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.” In other words, physicians don’t have a choice in emergencies.
What About Liability?
The majority of Good Samaritan laws, which remove liability from persons who render aid to an individual in the setting of an emergency, do not apply to working physicians. This was seen with Dr. Anna Pou, who was working at Memorial Medical Center during Hurricane Katrina in 2005. Evacuations had taken longer than expected, and after 72 hours, Dr. Pou and her staff attempted to ease the pain of some patients with narcotics and to reduce anxiety with anxiolytics. Some of the patients died, and as a result, Dr. Pou and four nurses were arrested for murder in addition to civil lawsuits being filed. These staff members had volunteered to stay behind to care for these patients and were working around the clock in unthinkable conditions, but they still faced backlash.
Passed in Louisiana in 2003, the Health Emergency Powers Act seemed to offer some protection. “During a state of public health emergency,” it states, “any health care providers shall not be civilly liable for causing death of, or injury to, any person … except in the event of gross negligence or willful misconduct.” Although the murder charges were dropped, this law didn’t prevent the arrest of Dr. Pou or protect her from later facing multiple civil lawsuits, which were settled for an undisclosed amount.
On March 23, 2020, Governor Andrew Cuomo issued an executive order in the state of New York that loosened many restrictions on medical practice. The order attempts to help medical professionals who are fighting the COVID-19 pandemic and allows nurse practitioners, physician assistants and CRNAs to work without physician supervision. It also loosens record-keeping requirements and allows hospitals to increase their number of beds. It states that healthcare providers “shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak unless it is established that such injury or death was caused by the gross negligence of such medical professional.” Is it grossly negligent to manage vents when you are a radiologist?
The government and the public seem to expect physicians to help in any capacity during the COVID-19 pandemic, even if the work is outside of their primary specialty. Yet physicians aren’t protected against biological, mental health or legal threats.
6 Tips for Working in the COVID-19 Healthcare Crisis
Nevertheless, the work continues. Here are some tips to keep in mind as you do your job during this unprecedented time.
1. Decide Whether or Not You Should Help
Currently, physicians are not required to come out of retirement or work unsupervised outside of their specialty, but that may change very soon. Most physicians who are helping are working with or under an attending physician who is a hospitalist, emergency physician or intensivist. Putting aside questions of personal safety, I believe you should ask yourself the following questions if you’re given a choice about whether or not to work:
Is anyone else available who is better trained than me in this task?
Will I cause more good than harm?
Is there a physician who is trained in the specialty that I am being asked to help with who could oversee my work?
The answers will be different for an anesthesiologist than for a dermatologist, but unfortunately, the situation may become so dire that we are all called in to help.
2. Understand Federal and State Laws
When working in this crisis, several physicians I spoke with said that they felt they were protected by the current laws. They could not, however, name any of these laws or describe the extent of the protection. Unfortunately, practicing medicine in the United States often leaves the practitioner open to litigation. If you think you’re protected simply because you’re doing the right thing, think again. To date, our federal government has not extended the same level of protection to you as your counterparts in Italy and many other countries.
Prior to agreeing to work outside of your primary specialty, talk with hospital attorneys, who will be able to explain the exact federal and state laws that apply to you during a healthcare crisis. Inquire specifically about the ramifications of working outside your medical specialty. If the answers are not satisfactory, I recommend retaining your own attorney. Laws are often different from state to state and you should be informed about legislative protections, if any, before proceeding.
3. Confirm Your Malpractice Coverage
In addition to discussing legislation, it’s imperative that you understand your current malpractice policy. Your attorney should review your policy and determine the extent of coverage you have if you’re working outside of your primary specialty. Your hospital (or you) may need to secure additional coverage. It’s important to remember that having liability protection doesn’t mean you won’t be sued, but you need to understand your policy before you begin work.
4. Assess Your Access to Personal Protective Equipment
Be sure you understand your institution’s policy regarding PPE during the COVID-19 healthcare crisis. The regulations vary widely, so make sure that you’re comfortable with the policy. Only agree to work outside your primary specialty if you’re properly protected.
5. Review Your Contracts
Review your current employment contract with your attorney and make sure you’ll be compensated for your time working outside of your primary specialty. Will you be receiving the same rate? Is there hazard pay? Overtime?
What will happen if you contract symptoms of COVID-19? Will you be tested or just placed in quarantine? The federal laws are changing quickly, but right now, if you’re not working, you won’t get your entire salary. What’s the current institutional policy for being in quarantine? Will you get paid? How much? When can you return to work? Will you be covered under the workers’ compensation program or your medical insurance?
6. Update Your Wills and Medical Directives
Unfortunately, even though the mortality rate for young people with COVID-19 is low, it’s much higher for older people and those with multiple medical problems. Working with COVID-19 patients carries significant risk, and healthcare professionals have died in many countries, including the United States. Now is the time to check that your will and advanced medical directives are up to date. Make sure your spouse or person in your life with power of attorney has access to your passwords and important files.
All Hands on Deck
The time may come when we will all need to help in any way we can, but we need to demand protection for ourselves. Soldiers go into battle with armor, knowing they will receive excellent healthcare, the law will protect them and their families will be taken care of. The federal government needs to offer similar protection for healthcare workers during the COVID-19 healthcare crisis.