AAOE® reached out to attorneys, Robert A. Wade and Mark D. Abruzzo, of Wade, Goldstein, Landau & Abruzzo, P.C., to get their views on the potential legal risks of limiting treatment of patients to only those with emergent needs. AAOE will be posting a series of interviews on legal, financial and risk considerations during the pandemic.
What is the liability, if any, of only treating urgent patients? What if a patient later turns out to be urgent because the physician didn’t see the patient?
Wade: In Pennsylvania, physicians have been asked to cancel any elective or invasive surgeries. While physician offices may still be open, it seems like routine eye exams and cataract surgeries that can be postponed should (and are) being canceled and rescheduled for everyone’s safety. Meanwhile, I imagine there are many procedures — like AMD injections that, if postponed too long — could result in loss of sight. Failure to do follow ups also could be hugely detrimental.
Abruzzo: There is potential liability if the deferral of care results in a worsening of a medical condition, yes, but only if the physician knew, or should have known this would be the case and did not act accordingly. To be clear, postponement of an appointment or procedure isn’t the same as postponement of care. The physician must be mindful of this and should keep the lines of communication with certain patients open.
Patients can be categorized: Those receiving routine care and need no follow-up, those needing follow-up, etc. All patients should be given contact information and instructed to call if they have any questions or their condition has taken an unexpected turn, etc. So, identification and communication will help protect against future liability. I know that there are physicians who are being “furloughed” and instructed to stay home without pay. But one cannot, whether or not they are paid, simply go home without regard to the ongoing obligation of care.
What are the most critical issues physicians and practice administrators should be aware of related to limiting patient care?
Wade: I guess the top three questions to be reconciled and answered are:
- In the jurisdiction, can the office be open for business at all?
- If so, and the office is legally allowed to be open and seeing patients, can the office afford to be open from a safety and even a financial perspective? Is allowing patients to even walk through the door a greater risk compared to the theoretical high-risk patient or staff, even after following enhanced safety measures?
- Assuming the answer is “yes” to the above, are there clear cases (e.g., so called “routine eye exams” or other cases) that can safely be postponed? I think this actually depends on whether there is history in the chart that would indicate prior disease for which one is being treated, what the disease is, prior treatment, prognosis and the potential effect of delay.
What I’m saying is that if there is a decision being made to keep an office open, then the decision about who to treat or not needs to be done, at the very least, in the context of the individual’s actual medical condition known by the doctor and by what appears in the chart. I think we can safely assume — but assumptions must be verified — that almost all patients will not suffer from some postponement.
If there’s any question though, how does one know, without looking at a patient, that his or her condition or life might be saved or worsened? Now, that said, I expect that for most patients that the analysis isn’t all that difficult. But I think it behooves people, if they are allowed to and are going to be open, to check before wholesale canceling (appointments). Check the chart. If there are any questions, see the patients and then determine whether to postpone or treat as indicated or get them transferred to someone who has the ability to treat.
At the end of the day, I think we will have few cases of liability for postponing what are elective — at least generally in terms of timing — procedures in an environment where a contagion is spreading so quickly. But where that happens, having a protocol in place and some assessment that says the practice looked at all the risk factors should go some way to limiting exposure.
Abruzzo: I think being mindful of continuity of care is important, as Rob discussed. I agree with what he has said regarding issues related to limiting patient care, and I think my responses are consistent with this view.
On the nonclinical side of things, physicians and practice administrators need to be aware that financially, when the fog lifts, they won’t revert right back to business as usual. Even if the schedules are fully booked, which I doubt, there will be a cash crunch on the front-end while receivables are being regenerated. Therefore, when practices resume operations, they’ll go a month or two with very little cash flow.
So, the financial crunch will endure for longer than the shutdown period by a couple of months. I think you might consider working with vendors to see what they might be willing to do to defer due dates. Interestingly, each day in the news I read about a large retailer or restaurant that decides not to pay its upcoming rent. They’re not talking about deferrals of rent; they’re saying they won’t pay rent while they are closed and that they’ll resume payments when they reopen. Surely, this will violate the lease agreements. But what are the landlords to do? Evict a valued tenant and cause vacancy in the down economy that will follow? The bottom line is, at the end of the day, everybody is going to have to feel some financial pain here. If done respectfully, there may be deals to he had here (perhaps extend the lease by the period of nonpayment, or reduce, but not eliminate rent?), not just with landlords but with other vendors.
Thank you both for sharing your insights with our members. Any last words?
Abruzzo: Ophthalmologists should have faith that the crisis will end before too long and their practices will resume. Few businesses are immune from this kind of crisis, of course. But ophthalmology is a necessary and valued service. Income from elective procedures may suffer with the economy for a while as they historically have, but practices will by and large recover. But don’t be shy to lean on creditors and vendors for assistance. Everybody is in this together.