Details about the latest relief package

The latest iteration of the COVID-19 relief package from Congress has taken many turns, and it hasn’t even been finalized yet. Some points of contention include:

  • Hospital bailout money
  • Medicaid protection funds
  • Liability protections for health care professionals

Hospital funding is tricky, as well as a moving target. While elective procedures all but stopped in the spring, some hospitals have reported larger than expected earnings during the first half of the year. The current proposed bailout amount is floating somewhere around $25 billion, and while that may seem like a huge infusion to keep hospitals afloat, the industry’s original request was $100 billion.

Medicaid is also tricky, in that it’s supposed to be largely funded by individual states. But when certain states are on the verge of bankruptcy (and it’s a matter of opinion as to whether those reasons are entirely COVID-related), who but the federal government can provide a large enough bailout? The current bill is requesting roughly 12 – 14% in matching federal dollars. One main caveat in this federal bailout is that states cannot cut enrollment numbers while they are taking in the money from the federal government.

On the liability side for hospitals and health care professionals, the bill seeks to provide protections against COVID-related lawsuits. Further, the bill also proposes capping allowable damages if in fact those protections aren’t enough. But neither immunity nor a cap can literally prevent someone from filing suit. And fighting a suit, even if it is eventually dismissed, is costly. Not only in dollars, but in time, morale, and reputation. No one wants this burden when trying to triage patients, but it’s a sad reality for most in the health care industry.

Not all of the potential liability is related to COVID-19, though. Elective procedures that were canceled might have long-term effects on patients, even if they never had the virus. Other potential risk areas include employee protections (ranging from lack of PPE to burnout to overtime pay), misdiagnoses, ratio of personnel to patients, and equipment shortages, to name a few.

As with any legislation, this is largely a waiting game. If you haven’t already, educate yourself about the relief bill. And call your representative so that your voice is heard. Then call your medical liability carrier to see how all of this affects you.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

  1. https://www.politico.com/news/2020/07/27/senate-coronavirus-package-hospitals-medicaid-383375
  2. https://www.jdsupra.com/legalnews/minimizing-medical-malpractice-90844/
  3. https://thehill.com/policy/finance/509438-stocks-close-down-as-congress-clashes-over-covid-19-relief-bill
  4. https://care-ins.com/

Trends in Coronavirus Legal Issues

COVID-19 has left more in its wake than deserted office buildings and empty restaurants. Litigation claims touch on many aspects of daily living, including business interruption, workplace/employee impact, treatments and cures, legal rights issues, and price gouging, just to name a few. Specifically, health care professionals are closely attuned to the potential legal liability of missed diagnoses, failed treatment plans, and workplace safety. Although the federal government is working to shield healthcare workers from COVID-related liabilities, many civil and class action lawsuits are already in motion.

One major factor that providers can control is their existing liability coverage. It is not uncommon for policies to exclude losses due to unusual circumstances. Couple those exclusions with the fact that much of policymaking is open to interpretation, and you have as many answers to questions as you have experts answering them. What is usually considered ‘business interruption’ when it comes to tangibles, such as a fire or a flood, is easier to define. A physical disaster like that may well level a building, and certainly close a business for months. The owner is now without supplies, equipment, and income. They then file a business interruption claim.

These situations are not as easily defined when it comes to a global pandemic. A healthcare practice is certainly considered essential during such emergencies, so how is loss determined when you are still open for business? One example might be the acute slowdown for non-emergent patient care. This immediately affected healthcare providers from many areas, including dentists, ophthalmologists, and even preventive care providers. Potential patients stayed home for months, avoiding all healthcare facilities, not daring to risk exposure to COVID-19. Does your policy cover this type of situation? It is best to confirm with your agent or carrier now, before you need to file a claim. Discuss your current coverage, along with options to shore up any potential gaps in coverage, so that you can continue operations with that necessary peace of mind.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

  1. https://topclassactions.com/lawsuit-settlements/coronavirus/a-complete-guide-to-the-coronavirus-outbreak-legal-issues/
  2. https://www.dwt.com/blogs/employment-labor-and-benefits/2020/03/healthcare-employer-coronavirus-legal-issues
  3. https://www.insurancejournal.com/news/national/2020/04/09/564371.htm

Artificial Intelligence in Healthcare: Who is Liable and Why

In a perfect world, both providers and patients would have total faith in artificial intelligence (AI) and its ability to diagnose and detect disease. (And while we’re at it, COVID-19 wouldn’t exist in a perfect world. But I digress …) However, even AI has to live within the limits of its imperfections. Mistakes are bound to happen, as are missed diagnoses and untreated diseases. It’s not a matter of IF, but rather WHEN it will happen. And when it does, the bigger question for providers is where liability lies: is it with the provider utilizing the AI system, or the company who built it? (1)

The line between user (provider) and developer is definitely blurry. One main dividing line is the law. A manufacturer may be exempt from state-level rulings if legislation exists at the federal level. This is called preemption(2). Potential liability does not only exist on the clinical side of healthcare. Operational and administrative functions, while they stand to make great gains in embracing AI, are also at risk for liability claims. Yet another factor is the patient side. When it comes to patients understanding and following provider instructions, the risk of liability has always existed. Will the introduction of AI protocols increase or decrease this risk? 

AI implementation has two main goals: reduce spending and improve patient outcomes. Overall, the goal is to piece together the puzzle known as the ‘iron triangle’ in the healthcare industry(3): balancing access, affordability, and effectiveness without adversely affecting each of the other factors. However, if users are constantly rechecking an AI’s prognosis, then what greater purpose does the AI serve? It’s not saving time or money at that point.   

If you haven’t already, now is the time to explore the AI applications that have potential within your practice. Research which options are best suited to your organization based on reliability, cost, ROI, personnel adoption, and patient readiness. Viewing all of these angles from the lens of risk mitigation will help you decide which AI applications to implement.

Contact us today. We can review your professional liability policy to ensure your coverage extends to the AI applications in your practice.

Footnotes

  1. https://www.statnews.com/2020/03/09/can-you-sue-artificial-intelligence-algorithm-for-malpractice/
  2. https://dictionary.law.com/Default.aspx?selected=1575
  3. https://www.forbes.com/sites/insights-intelai/2019/02/11/ai-and-healthcare-a-giant-opportunity/#7da71e6b4c68