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Discrimination in Medical Decision-Making: How Hospitals and Doctors Can Protect Themselves from Future Litigation During the COVID-19 Crisis

Medical Decision-Making Discrimination

How do you decide who receives treatment if your hospital cannot treat everyone who comes through its doors? This is a fundamental question that many hospitals will be forced to answer during the novel coronavirus outbreak, and it is one that has significant legal implications.

With no indication that the United States is yet near its peak of novel coronavirus (COVID-19) infections, hospitals around the country are continuing to see an influx of patients infected with the virus. This influx is putting hospitals in the dangerous position of not having enough equipment and health care providers to effectively treat all of their patients. In particular, the demand for ventilators is enormous, and hospitals from New York to California have raised concerns about the need for rationing.

How Anti-Discrimination Compliance Factors into Health Care Decision-Making During the COVID-19 Crisis

If the number of COVID-19 infections continues to increase as expected, hospitals and doctors who are forced to make critical decisions regarding who receives life-saving treatment – and who doesn’t – could face a host of medical malpractice and wrongful death lawsuits. Though this potential litigation may seem unfair, as health care providers are doing all they can and working with what they have to combat the pandemic, future lawsuits are all but certain for providers that fail to implement necessary precautionary measures.

Even during a global healthcare crisis, health care providers are not excused from their duty to provide reasonable treatment to all patients who need it. In particular, when making decisions about who receives necessary treatment, hospitals and doctors cannot discriminate against patients based on any protected characteristic—including national origin, ethnicity, sex, race, sexual orientation, and religion. If forced to turn patients away or deny necessary care during the COVID-19 crisis, hospitals that do not have policies that specifically address circumstances in which hospital capacity or access to medical equipment is a factor will be at risk for discrimination-based lawsuits.

Hospitals Must Adopt Policies and Procedures that are Specific to Health Care Decision-Making During the Novel Coronavirus Pandemic

With this in mind, hospitals need to add to their existing internal polices with the assistance of legal counsel. Hospitals should choose attorneys who are familiar with the federal and state anti-discrimination laws, and who have specific experience to developing policies for determining who will receive treatment when resources are limited. If drafting and implemented appropriately, these policies will establish an effective framework for treatment-related decision-making that is independent of any discriminatory considerations. Examples of necessary policy additions include:

  • Identifying screening criteria for who is to be tested for the novel coronavirus (COVID-19). Now that testing is more readily available, hospitals and other health care entities should avoid age-based discrimination in determining who should be tested. Policies should state than anyone who is experiencing symptoms of the virus (such as a cough, fever, body aches, and chills) should be tested regardless of their age, national origin, or financial status.
  • Procedures for effective sanitation. The COVID-19 virus is highly transmittable. As a result, hospitals and other health care entities need to address the transmissibility concerns and implement heightened sanitation protocols. These protocols should address all individuals and workspaces that have been or could have been exposed to the virus. All treatment spaces, whether they are used to treat the affluent or uninsured, need to be sanitized to the same standards.
  • Polices on equipment rationing. Patients who are in critical condition due the virus often require the use of a ventilator, and ventilators are currently in short supply. Life-saving equipment must be available to all patients who require it; and, when this is not possible, decisions must be mad based on sound medical judgment and not discriminatory considerations. Policies for ventilator utilization during the novel coronavirus outbreak should focus necessity to the exclusion of other factors. Hospitals that do not have these policies in place risk discrimination-based wrongful death lawsuits if coronavirus patients who do not receive ventilators die and the hospitals do not have written justification for why these patients were denied necessary treatment.
  • Admission criteria. Luckily, the majority of individuals who contract COVID-19 do not require hospitalization. These individuals can effectively weather the virus’s symptoms under quarantine at their homes. In all scenarios, the decision to admit a patient for hospitalization must be based on the seriousness of displayed symptoms as documented by the treating physician. Although physicians are given latitude on whether a virus-infected patient requires hospitalization, it is prudent for hospitals to have written criteria for admission. These admission criteria need to be based on displayed symptoms and physician screening, and must be independent of any discriminatory factors. Although every virus-related admission case might be different based on the unique circumstances presented, having admission criteria can potentially prevent future lawsuits if patients claim that they were denied admission based discriminatory considerations. When admitting patients for hospitalization due to the virus, the admitting physician needs to document why that patient is being admitted and what factors for admission are met—and these factors should align specifically with those outlined in the hospital’s COVID-19 policies.
  • Document retention. At all times, hospitals and other health care providers need to ensure that all activities, all treatments, and all ancillary matters related to these treatments are properly and effectively documented. This is particularly important during the novel coronavirus pandemic. When faced with lawsuits stemming from treatment or non-treatment of COVID-19 patients, hospitals and other providers will be able to minimize their risk exposure if they have documentation that details why a patient was or was not treated for the virus and how any treatment needs were determined.

This list is not an exhaustive list of all novel coronavirus-related policy additions that hospitals should adopt during the pandemic. Hospitals must make decisions in light of the unique aspects of their facilities and operations, and their policy additions must address their own specific needs in light of the impacts of the COVID-19 crisis. However, not having any novel coronavirus-specific policies or procedures will almost certainly be dangerous—for the hospital and for its staff and patients.

Hospitals that fail to adopt necessary policies face an uncertain future due to the risk of future lawsuits. This risk is particularly high if patients who are infected with the virus are turned away or die while under their care. Individual practitioners need to be wary as well, as they can face lawsuits in their individual capacity if they choose to act in a discriminatory manner that is not in compliance with federal and state law. Personal injury attorneys are marketing aggressively to attract COVID-19 patients and families whose hospitals and doctors failed to make the right decisions regarding their (or their loved ones’) care.

About Oberheiden P.C.

At Oberheiden P.C., we represent hospitals and other health care entities nationwide with regard to legal compliance and litigation defense. Our attorneys have decades of experience representing clients in all facets of health care law and compliance, including advising clients regarding risk mitigation in patient care. We are actively representing hospitals and other health care providers across the country during the COVID-19 crisis, and our attorneys can work quickly to help your facility adopt the policies and procedures needed in order to mitigate its risk of liability.

Oberheiden P.C. is comprised entirely of senior attorneys and consultants who all have extensive experience in federal practice, and the firm’s unique team approach ensures that each client receives the full benefit of our attorneys’ and consultants’ collective knowledge and insights. The members of our health care compliance and defense team include:

  • Dr. Nick Oberheiden, Founder and Career Health Care Compliance and Defense Attorney
  • John W. Sellers, Former Senior Trial Attorney at the U.S. Department of Justice (DOJ)
  • Amanda Marshall, Former U.S. Attorney
  • Lynette S. Byrd, Former Assistant U.S. Attorney
  • Wade A. McFaul, Former Assistant Special Agent-in-Charge at the U.S. Department of Health and Human Services (DHHS) Office of Inspector General (OIG)
  • Michael Orton, Former Special Agent at the DHHS OIG
  • Gregg S. Muroff, Former Supervisory Investigator for Medicaid

Learn more about all of the senior attorneys and consultants at Oberheiden P.C.

What are Your Next Steps?

If your hospital or other health care facility is treating patients during the novel coronavirus pandemic, we encourage you to contact us for more information about the policies and procedures you can utilize to help your doctors make informed decisions and mitigate your risk of liability. We are more than happy to discuss your needs and help you develop a plan for moving forward. Our attorneys and consultants are working with health care providers nationwide and are available 24/7, so contact us to speak with a member of our team today.

Speak with a Member of Our National Health Care Compliance and Defense Team

If you would like to speak with one of our senior attorneys or consultants about mitigating your health care facility’s legal risk during the COVID-19 crisis, call us at 888-680-1745 or contact us online. Do not wait until it is too late to seek help—let us use our experience to help you make informed decisions and avoid costly litigation.

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Nick Oberheiden is the absolute best federal litigation attorney. Nick gives you the immediate comfort of feeling 100% protected. He is polite, respectful— and extremely compelling. His legal strategy turned out to be brilliant.

– Marshall M.

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