Treating Post-COVID Patients: Legal Considerations

In all areas of healthcare, treating patients who have experienced COVID-19 infections is an everyday reality. So what are the legal considerations?

The US Centers for Disease Control and Prevention (CDC) estimates that as of the end of February 2022, nearly 60% of Americans have experienced at least one COVID-19 infection. 

Thus, caring for post-COVID patients is an everyday reality for healthcare professionals. And as the pandemic stretches on, clinicians will continue to grapple with new cases and their aftermath.

Your patients will continue to become infected. Some will struggle with long-term symptoms. Others will have lingering psychological effects from the experience. All will require vigilance to protect them from exposure. Here, we discuss the legal aspects of treating post-COVID patients.

The Return to the Clinic.

Thirty states have implemented COVID-19 shield laws that protect businesses, including healthcare practices, from liability for exposing workers or patrons/patients to the SARS-CoV-2 virus. However, several of these shield laws will expire over the next year.

Exposure-related lawsuits require the plaintiff to show that a business maintained inadequate COVID-19 prevention safety measures and that this negligence caused harm. Further, the plaintiff must prove that they contracted COVID-19 at the business — a difficult task with the virus circulating so widely.

Thus, businesses can largely protect themselves from liability by implementing reasonable precautions. Obviously, what is “reasonable” changes over time. Look to the laws in your state and locality, as well as recommendations by the CDC, to determine the appropriate actions.

For example, providers should follow the CDC guidelines to determine when employees (in non-urgent situations) and patients can return to the clinic after testing positive. Generally, it’s safe for individuals to enter your practice once they complete isolation. Nonetheless, clinics should encourage all recently infected people to wear well-fitted masks and continue to monitor for the recurrence of symptoms. 

Reporting.

If a patient tests positive for COVID-19, must you report it? What about a patient who has long-term COVID symptoms? 

If you’re a hospital, you’ll need to meet the federal reporting requirements set forth by the US Department of Health and Human Services (HHS). Most providers, though, will follow the directives of their state government agencies.

In Illinois, for example, the Department of Public Health requires providers to make a report to a local public health authority within three hours of a patient’s positive COVID diagnosis. Reports should be made to the provider’s local county health department. Many states mirror Illinois and have similar requirements.

However, healthcare providers do not need to report long-term COVID symptoms. Similarly, they are not required to report unreported positives, such as if a patient mentions a past infection they identified through a home test.

Standard of Care.

Negligence occurs when a patient proves that their doctor caused injury by breaching their standard of care — that is, failing to do what a reasonably prudent physician would do under similar circumstances. 

However, the COVID-19 public health emergency led many states to grant providers immunity from medical malpractice liability when treating COVID patients. In most states, this immunity lasts only as long as the declared emergency remains in force. Moreover, the immunity does not apply to long-term treatment and monitoring patients previously infected with COVID. 

As a new medical phenomenon with a wide range of symptoms, “long COVID” suffers from a lack of well-established protocols. Thus, liability is a concern. Physicians can reduce their risk of liability when treating patients with post-COVID conditions by:

• documenting the reasonableness for their decision-making;
• staying up to date on the current evidence-based care; and 
• communicating and listening to patients. 

Psychological Aspects.

The pandemic has been traumatizing to some and anxiety-provoking for all. As a result, providers must practice patient-centered care to help their patients have positive healthcare experiences. 

Providers should screen for signs of psychological trauma or increased mental health concerns, especially following a COVID infection. Such signs include:

• Difficulty answering questions or concentrating;
• Significant mood swings;
• Avoidance, such as canceling appointments;
• Expressing subjective anxiety or feelings of sadness;
• Sleep difficulties or fatigue;
• Changes in appetite; 
• Major life changes, such as leaving school or work; and
• Physical pain, such as headaches, GI issues, general muscle pain.

By recognizing these signs, healthcare professionals can assess whether a patient could benefit from a mental healthcare referral. In addition, providers should expand their referral networks to include specific specialists, like PTSD therapists who accept insurance, to ensure their patients get the help they need. 

End-Of-Life Planning.

COVID highlighted the importance of being prepared for end-of-life care. Providers should encourage patients to review end-of-life documents such as living wills (also called advanced directives) and medical power of attorney to ensure they represent their current values and situation.

Providers can assist in this process by: 

• encouraging patients to communicate with family;
• providing information on current treatments and interventions, along with their expected outcomes;
• providing patients with specific examples of what might happen and what options they would have; and
• engaging in patient-centered care by actively listening and asking questions to help patients determine what they value.

As the pandemic has marched on, many people may have changed their minds about what they would want if they were incapacitated or unable to communicate due to a COVID infection. Therefore, it is crucial for physicians to discuss patients’ wishes and ensure they are up to date. For example, provide information on the outcomes for patients on ventilators, especially in light of the improved survival rates since the earliest days of the pandemic.

Get Legal Support.

Early in the pandemic, our law firm received many urgent requests to develop COVID-19 policies for small to medium-sized practices. Take note: though we’ve all become more accustomed to pandemic life, the importance of such policies remains unchanged. And as the pandemic continues, bad decisions that result from a lack of forethought become harder to defend. 

The experienced healthcare attorneys at Jackson LLP can help you develop policies that balance the demands of running a business, the needs of patients, and liability protections. If you practice in one of the states where we have licensed attorneys, please reach out. You can schedule a free consultation to determine if you would like to work with us.

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.