Focusing on admissions, medical records, and policies—as well as communication with patients/residents and their families—will be crucial for health care and long-term care facilities to avoid litigation in the wake of the COVID-19 pandemic, Goldberg Segalla partner Julie P. Apter told Buffalo Business First. A member of the firm’s Health Care and Long-Term Care practices, she explained recent changes at the state and federal level and offered recommendations for providers confronting the outbreak.
The risks of claims targeting health care and long-term care companies are real, and not entirely mitigated by recent changes at the federal and state level aimed at granting some immunity from civil liability to providers battling the pandemic.
“I would assume the governor is trying to lift the fear for professionals to make sure they treat people as best they can,” Julie said. However, not all providers and professionals are covered, and there are other exceptions, she explained.
“People have to realize that there is number one, no immunity from any claims that are going to be made for gross negligence,” Julie said. “Also it’s not saying you can’t sue, just that you have two-and-a-half years to sue for medical malpractice. There’s nothing prohibiting lawyers from waiting.”
Julie outlined practices that health care and long-term care companies can put in place now to decrease the likelihood of claims and litigation and to reduce the risk of liability.
Facilities should have a policy that includes a standard agreement acknowledging simply that the patient or resident is coming into a facility during the COVID-19 crisis, Julie told Business First.
“That alerts the public that yes, you’re coming here for treatment, but we have other procedures we have to follow now,” she said.
All medical records should include a disclaimer noting the timing of COVID-19 and acknowledging that there may be special areas set up for care, and that operations and conditions may have to change rapidly in times of emergency.
Clear, up-to-date policies are vital, Julie said. She told Business First that providers should consider adding a page or a section that applies to COVID-19 with guidance on how care is rendered pursuant to applicable state or federal health guidelines.
The number one way for health care and long-term care facilities to avoid litigation, Julie said, is to keep the lines of communication open with families.
“Just be open and informative, and be willing to answer any questions the families have,” she said.
Julie Apter is a seasoned attorney with more than 30 years of experience, maintaining a focus on a wide range of employment law, general litigation, and constitutional and civil rights matters for both public and private clients, including numerous health care and long-term care companies, national food and beverage franchises, and municipalities and public entities. In the increasingly regulated and complex employment landscape, Julie provides guidance to clients with keen insight into the intricacies of successful employment litigation.