By Thomas A. Mobilia, Esq. and Daniel L. Freidlin, Esq.
The SARS-Cov-2 (Coronavirus or COVID-19) pandemic and the physical distancing measures taken to combat its spread have had a significant negative impact on businesses across the country.
Medical practices were no exception with many having been forced to shut their doors for months. With the exception of telehealth, physical distancing is difficult when it comes to the practice of medicine. At the outset of the pandemic, The American Society of Breast Surgeons (ASBrS) and American College of Radiology (ACR), in accordance Centers for Disease Control and Prevention (CDC) guidance, recommended delaying all nonessential procedures such as breast cancer screening exams “until the pandemic is over.” In a recent analysis, researchers estimated that the overall decline in outpatient radiological studies was 88% (including a 94% decline in mammograms).
Delaying any medical procedure, including breast cancer screening, naturally raises liability concerns. A patient most recently diagnosed with breast cancer since their last screening exam may question whether diagnosis could have been made earlier. In contemplation of this, some state and local governments enacted laws aimed at providing immunity for various healthcare scenarios that could arise during the coronavirus pandemic. As an example, New York Public Health Law Article 30-D, entitled the “Emergency Disaster Treatment Protection Act (EDTPA),” was enacted to provide immunity to hospitals, nursing homes, and healthcare professionals for acts and/or omissions related to the care of individuals with COVID-19.
Under the Act, the following three conditions must be met for immunity to apply:
- The facility or professional arranged for or provided health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
- The act or omission at issue occurred in the course of arranging for or providing health care services and the treatment of the individual was impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of New York State’s directives; and
- The health care facility or health care professional arranged for or provided health care services in good faith
The immunity provided under the EDTPA is limited, as it is does not cover injuries or damages caused by willful or intentional criminal conduct, gross negligence, recklessness or intentional infliction of harm. An act or omission resulting from a resource or staffing shortage is not considered an exception to the immunity afforded under the Act. The immunity provision expires at the end of New York State’s Emergency Declaration related to COVID-19.
As medical practices emerge from COVID-19 restrictions, they must navigate through the accomplishment of timely care and treatment while minimizing the risk of infection to its patients and staff. This is no easy feat. Consider, for example, an outpatient radiology facility that must now manage hundreds to thousands of routine diagnostic imaging studies that were delayed due to COVID-19. Practices must necessarily juggle staff shifts and availability, scheduling backlogged tests, following-up on noncompliant patients, prescreening patients for possible COVID-19, waiting room density, appropriate imaging volume for radiological interpretation, maintaining social distancing and personal protection equipment (PPE) precautions and the cleaning and disinfection of the facility. With states and their counties reopening at different speeds, guidance as what may be appropriate today in one phase of reopening may be outdated tomorrow. As such, practices must continuously evaluate factors such as where they fall on the reopening curve, state and local guidelines, as well as the aforementioned issues specific to their facility. The best advice under these evolving conditions is to keep in tune with the most current state and local mandates and recommendations published by recognized health organizations, such as CDC, CMS and ACR. Legal guidance may also be advisable to clarify and address the uncertainties facing radiology practices in these challenging times.