As practices and facilities re-open, physicians and staff must be prepared to address the potential risks for COVID-19 exposure/infection to patients. Patients will understandably be fearful and educating patients to the infection control practices in place can help alleviate those fears as well as mitigate liability risk. In addition, when considering a proposed treatment or procedure, patients must be given the opportunity to make a voluntary and informed decision, which includes understanding the risk of exposure to COVID-19.
A disclaimer is not likely to provide strong liability protections under the circumstances. Alternatively, place the major focus on patient and staff safety. Document infection control education and instructions given to patients (e.g., wear masks pursuant to state and CDC recommendations), and whether the patient is showing symptoms as this could become helpful if the patient later decides to file a lawsuit based on allegations that someone in the office infected him or her. You can also educate patients about why healthcare personnel are wearing masks, make patients wait in their cars until called to come in for an appointment one by one, see only patients that cannot be seen via telehealth, etc. This might dissuade patients from focusing on your practice as the most likely source if they become infected.
If the patient is undergoing a procedure, a thorough documentation of the consent discussion and the patient’s understanding of the risks, including COVID-19 infection risks, will be helpful if the patient files a lawsuit alleging that he or she contracted COVID-19 at your facility.
COVID-19 CONSENT - RISK MANAGEMENT RECOMMENDATIONS
Office Visit Considerations:
To help keep patients safe and mitigate liability risks consider the following:
- Educate patients about your current infection control protocols and explain what the practice is doing to limit the spread of infection.
- Educate patients regarding testing for active and previous infection as applicable. Include the uncertainty of antibodies to the virus protecting someone from getting the virus again or how long the protections may last.
- Provide patients with educational materials to help them better understand the risks of COVID-19, how to prevent the spread of respiratory diseases like COVID-19, and your efforts to mitigate those risks within the medical practice. Access simple-to-understand, educational material for patients to help stop the spread of germs.
- Document the patient’s acknowledgement of his or her understanding that COVID-19 is contagious and that there is risk of COVID-19 infection by community spread and entering a medical facility.
- Screen patients for physical signs of COVID-19 as appropriate, including temperature, cough, and shortness of breath.
- Screen patients’ exposure to COVID-19 or positive COVID-19 tests.
- Screen patients for recent travel as traveling increases the chances of getting COVID-19.
- Have a plan in place for patients that have symptoms the day of, day before, or have a positive test result. See NORCAL Group's COVID-19 Physician, Staff and Healthcare Operations Resources.
To the extent possible, provide patient education materials to and screen patients before the visit to the office, i.e., by patient portal, email, telephone.
PRE-PROCEDURE CONSIDERATIONS AND INFORMED CONSENT
In addition to the recommendations above, consider the following:
- Inform patients that they may be tested for COVID-19 before their procedure.
- Follow usual and customary informed consent processes. Please refer to NORCAL Informed Consent and Refusal Resource document.
- Access an Informed Consent Sample Form to adapt and use
- In addition to discussing the risks and benefits of the procedure, have a thorough discussion with the patient regarding:
- the potential risk of COVID-19 infection transmission related to community exposure, entering a medical facility and undergoing a medical procedure during the current pandemic
- any urgency regarding the procedure and the risks and benefits of delaying the procedure
- the potential risks of COVID-19 infection including severe illness, hospitalization, even death
- Consider including statements in your procedure consent form or as an addendum to your form regarding COVID-19 and the potential risk of infection.
SAMPLE STATEMENTS FOR ADAPTING YOUR CONSENT FORMS
I understand the risk of COVID-19 infection transmission related to entering a medical facility and undergoing a medical procedure during the current COVID-19 pandemic.
I understand that if my COVID-19 test is negative, I still may have been exposed to the virus in the community or I may have contracted the virus after I took the test.
I understand that my physician has taken appropriate safety precautions and follows sound infection control protocols.
I understand the risks of delaying my procedure and have been given the option to postpone my procedure until a later date.
I understand that I may be exposed to the COVID-19 virus before, during or after the procedure. The procedure may put me at increased risk for complications related to the virus. A diagnosis of COVID-19 may lead to serious illness, hospitalization, or death.
I understand all the risks associated with the procedure, including risks related to COVID-19. I have been given the opportunity to ask questions and all my questions have been answered.