Lack of adequate insurance puts healthcare workers at risk of malpractice lawsuits

NEW YORK (Thomson Reuters Regulatory Intelligence) - (This article was produced by Thomson Reuters Regulatory Intelligence - - and initially posted on April 22. Regulatory Intelligence provides a single source for regulatory news, analysis, rules and developments, with global coverage of more than 400 regulators and exchanges. Follow Regulatory Intelligence compliance news on Twitter: @thomsonreuters)

Healthcare workers don personal protective equipment (PPE) as they wait for patients to arrive for testing at a One Medical testing facility built to help with the coronavirus disease (COVID-19) outbreak, in the Bronx borough of New York City, U.S., April 21, 2020.

Healthcare workers on the frontlines of the new coronavirus outbreak face increased risks not only of stress and infection but also malpractice litigation, for which many lack insurance coverage at a time when they are working across specialties and state lines to provide care.

Some states like New York and New Jersey have granted temporary legal immunity to healthcare professionals, with few exclusions such as gross negligence and criminal misconduct, for the duration of the public health emergency.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act similarly provides restricted immunity to volunteers assisting crisis response, but it does not include immunity for hospital systems or compensated healthcare providers.

Representatives of healthcare workers are asking the federal government to establish a similar nationwide immunity during the public health emergency, as some healthcare professionals are now working out of their usual practice area to support service in COVID-19 hotspots.

In addition, healthcare workers in emergency rooms are operating under severe mental and physical stress with a huge shortage of personnel and personal protective equipment such as masks and gowns. They are forced to make clinical decisions and administer care with limited access to life-saving equipment such as ventilators.

More than half a dozen emergency room doctors and nurses told Reuters[here] they are concerned about liability in this crisis.

The American Academy of Emergency Medicine called on the federal government to provide immunity from malpractice litigation for medical care that occurs during the period saying “patient care decisions that may be best for an individual patient may not be feasible or appropriate when viewed in context of the entire population.”

Even in states that have granted legal immunity to medical professionals, many healthcare workers facing litigation could incur charges in retaining an attorney to fight off the gross negligence or criminal misconduct claim.

While physicians may hold some form of liability insurance because of the greater risk of litigation associated with their practice, nurses are more at risk of incurring legal expenses during this COVID-19 crisis as they are now practicing across specialties, facilities and states with different codes of conduct, Edie Brous, a nurse attorney said.

“The biggest problem with nurses is too many don’t have professional liability insurance because they’ve been told by their employers that they don’t need it - which is a mistake,” Brous said. “It doesn’t occur to them that the coverage they’ve got through their employer is very limited in what it covers.”

Nurses are also much likely to get disciplined by their nursing boards, and employer insurance options would not cover costs associated with that, Brous added.

Physicians typically have some kind of professional liability insurance which covers expenses associated with defending and settling a malpractice lawsuit and may also pay damages if the insured is found guilty.

Premiums, however, can be priced higher or lower depending on the risk associated with the specialty of the practitioner and the scope of the plan. These plans may also carry exclusions for practicing in a clinic or facility not named in the policy or different specialty associated with a higher risk than that priced in the plan.

(By Antonita Madonna in New York, Regulatory intelligence)

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