News & Insights

COVID-19 and its Impact on Physicians’ Legal Liability in Arkansas

March 25, 2020

By Paul McNeill, Attorney at Law, Partner, RMP LLP

COVID-19 and its Impact on Physicians’ Legal Liability in Arkansas
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All you have to do is Google “coronavirus lawsuits” and you see the surge. Cruise ships, nursing homes, places of employment, medical professionals are or will be included. In a similar situation, not too many years ago in the fall of 2014, Nurse Nina Pham sued and settled out of Court with Health Presbyterian Hospital in Dallas, Texas for contracting the Ebola virus.

On March 11, 2020, Arkansas Governor Asa Hutchinson declared a State of Emergency to combat the spread of COVID-19. The declaration instructs the Secretary of Health to “issue orders of isolation and/or quarantine as necessary and appropriate” and grants the Arkansas Department of Health “sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout the state.” While millions of Americans have been ordered to work from home, physicians, nurses, staff and other medical personnel have experienced an unprecedented uptick in the number of individuals seeking testing or treatment for the virus.

As medical providers continue to work, it must be considered how the actions by federal, state and local authorities might affect what certainly seems inevitable: litigation between COVID-19 patients and the care rendered to them by medical providers. The short answer, unfortunately, is that it’s not entirely clear. COVID-19 is largely unchartered waters, not just medically, but legally.

What is known is that the existing medical malpractice law has not changed. That means, in Arkansas, a physician will be held liable when he or she is found to have breached the “standard of care” which proximately causes injury to a patient. The “standard of care” is that care which would reasonably be rendered by a physician with the same “degree of skill and learning ordinarily possessed [ ] by members of the profession in good standing, engaged in the same type of practice in the [same] or similar locality.” Although difficult to apply a “standard of care” to a novel pandemic, there is certainly a number of steps healthcare providers can and should take to minimize their potential legal liability, including:

  • Follow CDC and ADH Guidelines. The Center for Disease Control (“CDC”) and the Arkansas Department of Health (“ADH”) are actively publishing guidelines for providers, which can be accessed below. The guidelines should be checked daily.

  • Preemptive Accommodations. On initial interaction, ask the prospective patient their symptoms, potential contact with COVID-19, and travel history. Whenever possible, screen the patient over the phone or via telemedicine. When necessary, instruct the patient to wear a mask to the facility, wash their hands prior to arrival, and enter in a manner that avoids waiting areas.

  • Notify and Warn. Notify visitors of any new practices or policies applicable to them on your website, social media, email, telephone, on-site signage and/or any other available means. Strongly encourage patients to call before arriving at the clinic. The CDC and ADH have generated several flyers on their websites that easily can be posted to assist visitors.

  • Review Facility Policies. If your facility has an infection control plan or other similar policy for treating pandemic or viral outbreaks, (re)acquaint yourself with it and follow same.

  • Record-Keeping. Ensure the patient record reflects all instances in which the patient was seen by the physician or other provider.

  • Implement Distancing Practices. If possible, test and/or treat suspected COVID-19 patients in a triage area detached from the primary facility. Otherwise, designate a COVID-19 area that is as far removed as possible from other areas of the facility. Further, arrange the facility in a manner that spreads visitors out from one another. Limit interactions between staff, visitors and those being treated or tested for COVID-19.

  • Report. In the event a patient tests positive for COVID-19, report the same to ADH at (800) 651-3493 or, if afterhours, (501) 661-2136.

  • Follow Up. Ensure the facility has up-to-day contact information for those patients who have tested positive for COVID-19. Follow up with the patients and provide them with the resources posted on the CDC and ADH homepages.

What can you do to protect yourself? The short answer is follow the guidelines and Document, Document, Document!!!

You should document in the patient’s chart, for example, that

  1. The patient does not meet CDC criteria for testing or treatment;

  2. That tests are not immediately available;

  3. That the patient should self-quarantine;

  4. What “self-quarantine” means- a handout or reference is helpful, but at a minimum they should not go to work, see others, seek immediate care if symptoms begin, etc.;

  5. That the patient was advised to go to a testing location if indicated;

  6. If prescribing medication not cleared for use that the patient has been so advised and agrees and understands, for example:

“Patient has been explained that (medication) has not been clinically tested nor approved for treatment, either prophylactically or symptomatically for Coronavirus, however after explaining same the patient decided to go forward and take medication aware of its experimental usage, and that the risks and side effects are not fully understood and patient understands and agrees. Patient is to advise immediately of any reaction, side effect, or unusual reaction while taking this prescription and is not to combine this with any other prescription or over the counter medication for Coronavirus”.

In summary, the recent actions taken by federal, state and local authorities have not altered the standard for physician liability in Arkansas. What is unknown, however, is how that standard will be applied to COVID-19. The strongest indication to date of what that standard may be is the guidelines published by the CDC and ADH. Those guidelines, paired with the other items set forth herein, will go a long way in reducing ahealthcare provider’s legal exposure.

LAMMICO thanks Paul McNeill for allowing us to republish this timely article. Paul McNeill joined RMP LLP as a partner in January 2016 to head up its litigation practice. Paul specializes in medical malpractice defense, including the defense of LAMMICO insureds in Arkansas. 

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