Tenet is preparing for potential lawsuits from patients claiming they caught the coronavirus at one of its hospitals. A New York nursing union is suing hospitals claiming inadequate protection for workers on the front lines.
Providers are grappling with a host of novel legal concerns like these as they treat patients amid the COVID-19 pandemic, leading them to seek protections from various levels of government.
From decisions over what qualifies as elective surgery to navigating near-daily CMS updates and fears of doctors claiming unsafe working conditions, doctors and hospitals have little precedent to go on.
"This is such an unknown area," Damaris Medina, co-chair of the life sciences practice at law firm Buchalter, told Healthcare Dive. "It's really hard to predict what's going to happen in terms of litigation."
Hospitals and physician groups are taking unprecedented economic hits and many have furloughed or laid off staff as they try to weather the storm. That could leave them even more unprepared for legal issues that arise, as they almost inevitably will.
"It's just a horrible, difficult situation, and there's not a lot of easy answers here," Douglas Grimm, healthcare practice co-leader at Arent Fox, told Healthcare Dive. "I'm not sure we've experienced something like this before. In fact, I know we haven't."
Provider groups are pushing Congress to include some immunity for those treating COVID-19 patients in relief legislation. The four bills signed into law so far have only extended protections for medical volunteers.
It could be an uphill battle. The last bill approved in the Democratic-controlled House, panned by Republicans in the Senate and the president, does not include any immunity language.
Senate Majority Leader Mitch McConnell and fellow Republicans have said they want future legislation to provide broad-based liability protections to businesses that could face lawsuits from employees or customers who say they became infected with COVID-19 on their premises.
McConnell opposes other provisions in the Democrats' bill such as extending enhanced unemployment insurance and additional direct payments to citizens.
Mike Stinson, vice president of government relations and public policy for the Medical Professional Liability Association, which represent liability insurance providers and supports the creation of federal legislation providing a form of immunity, contends the idea has broad support.
"Right now, I think there's fairly unanimous consent that liability protections for healthcare providers are necessary and appropriate," he said. "We're not hearing a lot of pushback on that, depending on what the scope is going to be."
Any immunity with a chance of passing would still hold providers liable for any willful negligence or misconduct. And it would likely be limited to the timeframe of the declared public health emergency plus about 60 days.
Medina said a national and broad-based immunity is somewhat unlikely, though states are moving.
About half of states have taken action to limit provider liability, including hard-hit New York. Some states, like Virginia, already have protections in place that kick in during a public health emergency.
But Stinson worries some of those orders will be challenged because they are loosely-worded and open to interpretation.
Patient advocates, for their part, are wary of giving providers too much leeway. As nursing homes have sought explicit protection from lawsuits, watchdogs have warned such action could excuse poor practices that caused the virus to spread at facilities.
Medina said further nuance is the key.
"There's a push and pull here. I think both the federal and state governments are going to have to find that balance between the two — between offering patients protection and between providing immunities that will grant the ability of healthcare providers to continue to provide care without the fear of being prosecuted or going out of business," she said.
Hospitals are now trying to determine how to restart elective procedures. Most began halting those often profit-generating services in March as resources were marshaled to treat COVID-19 patients and healthy people stayed away for fear of infection.
Now, they're deciding which services can be ramped up, when to start and how quickly to proceed. Some governors and municipalities have given guidance, but the plans are often vague and it's up to the providers to decide how to move forward. Federal guidance also lacks specificity, leaving the key details to states.
Providers don't want to shut down a service that could be helping weather the economic storm, but also don't want to worsen spread of the virus or blunt the ability to respond to a patient surge, said Jesse Neil, a partner in Waller's healthcare compliance and operations practice.
"Determining whether you're essential or nonessential and what makeup of your service offerings are going to be available has been a really intensive process," he said.
It can also depend on individual patient needs. As many providers have noted, some elective procedures are medically necessary and cannot be put off for long.
\The key, Neil said, is to develop a plan with a clinical basis that is well documented and communicated to patients. "If you develop your approach and you follow it — that's going to mitigate your risk," he said.
In a recent conference call with investors, Tenet Healthcare noted one legal issue it was preparing for was people claiming they became infected with the novel coronavirus at its facilities.
But Grimm said it would be difficult for someone to prove they contracted the virus at one specific location, and so long as facilities could demonstrate they complied with existing infection control guidelines, a plaintiff would not be likely to prevail.
"The concern with COVID, obviously, is when you have patients coming in faster than the hospital can process ... the question then becomes if these folks have communicable airborne disease, how do you isolate them to prevent additional infection? And the answer is, they do the best they can with what they have," he said.
As hospitals have faced surges of COVID-19 patients, their providers have been stretched to the brink in many cases. Nurses and doctors have reported not having enough personal protective equipment to safely do their jobs and some have filed complaints with the Occupation Safety and Health Administration.
Nurses unions in New York have sued the state health department and local hospitals, arguing their working conditions were unsafe. One case was dismissed because arbitration was not pursued and two are still pending.
And with facilities facing severely flagging revenues while lucrative elective procedures were put off, providers have faced layoffs, furloughs and pay cuts. Nurses at HCA threatened to protest when facing job cuts, pointing out the hospital operator is still in the red and has received $700 million from the Coronavirus Aid, Relief, and Economic Security Act.
Further legal action from hospital employees is likely, but the fights will largely hinge on state regulations.
"That's going to be a matter of state employment law, because no one is forcing the nurse to work. The nurse can always walk off the job," Grimm said.
To help providers attempt to adapt to changing conditions, HHS has been implementing waivers and issuing new regulations every week. That's a lot for providers to stay on top of.
And in allocating emergency funds, Congress has attached some strings, such as a ban on surprise billing for COVID-19 testing and treatment. HHS is required to give more guidance on CARES Act funding requirements 180 days after the legislation was approved.
"That kind of gives this whole holding pattern of determining what exactly are our obligations and liabilities," Savera Sandhu, a partner at Newmeyer Dillion, told Healthcare Dive.
Despite assurance from HHS that the CARES Act funding would be "no strings attached," the surprise billing ban, reporting requirements and other stipulations have spooked providers. Some have gone so far as to return the money instead of risk accepting and not complying with the regulations.
Paul Kim, chair of the healthcare group at law firm Cole Schotz, recommends documentation as the best method for providers to protect themselves. "You should document why you can't do [something] so, in an audit, people can see why it happened this way and why you couldn't do it the other way," he told Healthcare Dive.
Many aspects of the COVID-19 pandemic will linger with the healthcare industry for a long time, including legal concerns.
"There will be lawsuits," Grimm said. "It goes back to: Anyone can sue anyone for anything."