Florida providers should consider legal risks as the Covid-19 pandemic lessens in intensity.
We are not out of the woods yet.
But with a view towards the Covid-19 pandemic slowly subsiding healthcare professionals, facility managers and owners need to consider what’s ahead. Doctors, nurses, and other licensed healthcare workers should consider the heightened scrutiny of the Florida Department of Health and Agency for Health Care Administration during this crisis.
1. Present Situation
There is a lot of data and much to sort through to try and understand where we are in the current crisis. In earlier blogs, I presented links to the Florida Department of Health Covid-19 data and many readers responded positively and said the information was helpful at the beginning of this pandemic. See: https://www.floridahealthcareattorney.com/2020/04/covid-19-virus-data-for-florida/
Now, the Federal Centers for Disease Control and Prevention (CDC) is publishing very helpful regular surveillance reports and heath data which, generally speaking is showing the trends are downward. The CDC has broken its reports down as follows:
Outpatient Emergency Department Visits https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html#outpatient
Healthcare systems and industry leaders (it’s hard to think of health care as an industry, but it is), regularly collect and study metrics to discern where the Covid-19 is headed. This helps with strategic planning, materials acquisition, determination of labor force requirements and other decisions. At the beginning of the national shut down we heard from health care professionals that were either furloughed or had their compensation cut during the downturn. Similarly, we have heard of situations where hospital systems in Florida have asked their physicians and mid-levels to agree to temporary cuts while asking them to be available under an “all hands on deck” policy for that particular facility.
Long-term care facilities and Assisted Living Facilities seem to have born the brunt of the pandemic and data shows that the largest concentration of illnesses cluster around these vulnerable populations. https://www.miamiherald.com/news/health-care/article242324476.html
This is not to downplay either the Emergency Departments in certain metropolitan areas. While certainly true for New York City, which appears to be the national epicenter of the virus, Florida reports sufficient bed capacity in its hospitals.
2. Legal Issues for Healthcare Providers
Because we have never experienced this type of modern day pandemic in Florida (with the exception of the Spanish flu in 1918), its hard to discern what the legal exposure is to the medical professional and facilities. Generally one can see that legal risk in the areas of: state regulation, professional licensure, and civil lawsuit liability.
A. State Regulation & Professional Licensure Risk
The Agency for Health Care Administration (AHCA), which licenses and regulates health care facilities in Florida, continues to play a vital role in addressing the public health crisis. However, one should not think that AHCA is neglecting its role as a strict regulator of facilities. Even now during the pandemic AHCA site investigators are responding to consumer and patient complaints about certain operators. This means that the Agency can and will issue citations, cease and desist letters, open investigations, and file disciplinary proceedings against operators if they determine there are violations. We have been made aware of an uptick in reports about various facilities and there level of care during the pandemic.
Similarly, the Florida Department of Health (DOH), while at the center of the public health response to the Covid-19 has not suspended its investigative and disciplinary role over licensed health care professionals. Originally, the thinking was that after this virus is over patients, their families or others would file an enormous amount of complaints against various professionals. However, we are seeing that happen now, not later. Again, practitioners operating in long-term care and ALFs are the most likely to see complaints or inquiries by DOH. And to a smaller extent hospital ERs. Again, this is due primarily to the virus being so prevalent within senior living and long-term care environments.
B. Liability, Civil Lawsuits, and Workers Compensation
Unfortunately, some people and their lawyers see catastrophe as an opportunity. Plaintiff lawyer advertising and some citizens seeing a potential windfall are the norm in today's society. The proverbial “ambulance chaser” has not taken heed and “sheltered in place.” We will see in the coming months and years whether facilities and professionals are sued under a theory that they had a duty to warn that certain patients tested positive for Covid-19. Or medical malpractice….or even simple negligence of certain individuals in failure to take certain undetermined steps to protect patients, or others.
On the workers compensation front there is a discussion of whether or not Covid-19 contracted by a healthcare worker is covered under the Employer’s policy. It certainly would seem to be an occupational disease. Recently, Florida’s Chief Financial Officer Jimmy Patronis informed workers compensation insurance carriers of their duty to cover workers exposed to the virus. In a Memorandum issued by CFO Patronis, he states:
“Insurers licensed to provide workers’ compensation coverage in Florida are reminded of this statutory requirement, which must be applied on a non-discriminatory basis. The OIR expects workers’ compensation insurers to comply with all of the provisions of Florida’s Workers’ Compensation Law and will take appropriate action in the event of non-compliance.”
This means that workers in the healthcare field should not encounter much resistance from insurance companies if a condition is shown to be the result of exposure to Covid-19 while in the course and scope of one’s employment.
Finally, all health care providers, clinics, and facilities should check the liability coverage they have in force during this coverage period and direct questions to your insurance agent or representative about the extent of your policy. What is covered? What is excluded?
3. Strategic Planning
It’s wise to have data and a plan for coming out on the other side of this pandemic. As stated earlier, professionals and providers should make a determination early on as to what insurance coverage they currently have and the extent of that coverage. If you do not have insurance, it’s too late to obtain coverage for what has already occurred, but make certain you know what insurance you do have right now. If you are an employer contact your agent to determine the position of your insurer in the event of an on the job exposure to Covid-19.
Another issue not mentioned is professional license defense insurance coverage. At this time, individual health care workers that are licensed should contact their insurer or the employer’s insurer if they have coverage through the company to determine not just if the insurance covers civil lawsuits, but does it cover investigations of your professional license by the State too?
Finally, follow the data. Information is power. Read your professional journals and news sources. Follow the aforementioned CDC and DOH websites to gauge the scope and tail end of the crisis. Know that just because the data shows the public health emergency is subsiding, the ensuing problems may have just started.
There is no substitute for knowledge and staying on top of the data, not to mention your rights and responsibilities under the law. You are in one of the most admired professions in humanity, but you still must protect yourself.
Our Law Firm represents health care professionals, facility owners, and clinic/facility managers with representation before professional boards, investigations by DOH and AHCA, licensing and change of ownership applications, workers compensation issues, civil litigation, business planning, and advice & counsel on general health law matters. If you have questions during this Covid-19 pandemic and are a healthcare provider, professional or owner we are offering FREE consultations and an opportunity to talk with one of our experienced health care attorneys. To schedule a consultation you can contact us at:
- Tallahassee - Main Office 850-877-7776
- Orlando - Central Florida Office 407-717-1773
- Sarasota - SW Florida Office 941-779-4348
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- Email Us at LAWYERHELPNOW@JSH-PA.COM