West Virginia Health Care Law

Since the first case of the Novel Coronavirus (COVID-19) was reported on January 21, 2020, people across the country have been faced with more questions than answers. With no known vaccine or treatment for the virus, and with other countries seeing COVID-19 spread at an alarming rate, it is not surprising that some degree of panic has begun to develop. While there are no known cases in West Virginia at the time of this posting, government agencies and health care providers across the state are working to prepare for the inevitable spread of COVID-19 into the Mountain State.

Meanwhile, the Bowles Rice Health Care Group has begun fielding calls from hospitals, health centers and private medical practices regarding the various legal issues that necessarily surround these preparations. In the first part of my West Virginia Health Care Law blog installment on COVID-19, I addressed questions pertaining to the various statutes and regulations that could apply to situations arising from COVID-19’s impact on employment relationships. In this second part of our look at COVID-19, I will address some the frequently asked questions regarding the practice of medicine.

• Do we HAVE to take or see patients who think they are infected with COVID-19?

It is a common misconception that physicians are legally required to treat patients regardless of the circumstances. In reality, there are a lot of factors that determine whether a health care provider is required to provide services to a specific patient. As a rule, private practice physicians who do not receive public funding through programs like Medicaid or Medicare can choose who they wish to treat, subject to state and federal anti-discrimination laws. Hospitals, on the other hand, generally may not deny treatment to anyone who is facing a life-threatening emergency. In between those extremes, there lies an ocean of gray area that physicians must try to navigate.

Once a physician/patient relationship is established, the general rule is that a physician has a duty to continue providing care to the patient until (i) that relationship is terminated by the mutual consent of the parties, (ii) the patient dismisses the physician, (iii) the services of the physician are no longer required, or (iv) the physician properly withdraws from the relationship without abandoning the patient. Abandonment happens when a physician abruptly terminates a relationship with an individual patient without ensuring that the patient can establish alternative arrangements to address immediate health care needs.

Medical providers offering primary care services will be more limited in their ability to avoid treating patients infected with COVID-19. The Americans with Disabilities Act (ADA) provides broad protections for disabled individuals, including individuals who have a contagious disease. Most notably, the ADA prohibits a place of public accommodation from denying an individual access to health care because of disability, unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of policies, practices, or procedures.

In addressing the applicability of the ADA to a medical provider’s decision to refuse to treat a patient, the United States Supreme Court found that asymptotic HIV infection qualifies as a disability under the ADA. In Bragdon v. Abbott, a dentist refused to fill a cavity of an HIV patient in his office, offering instead to treat the patient in a hospital setting – and at a higher cost to the patient. The patient alleged this requirement violated the ADA, and the court agreed, establishing an obligation for health care providers to treat patients with communicable diseases in the same fashion as patients with other disabilities. Similarly, professional ethical considerations also may limit a physician’s ability to deny care to a patient. The American Medical Association Council of Ethical and Judicial Affairs previously found it is unethical to deny treatment to individuals because they are HIV positive. In light of these decisions, it is likely that courts will find that patients infected with COVID-19 are entitled to protection under the ADA.

Specialty providers, on the other hand, may be justified in deferring the non-emergent treatment of infected patients until after the patient has recovered. In making such a decision, the physician will want to assess whether the active infection compromises the procedure or the patient’s prognosis. In cases where the patient’s safety is at risk, it makes sense that a non-emergency procedure would be postponed until a later date.

Physicians must be sure the reason given to the patient for the denial of care is not viewed as a pretext for discrimination. To avoid allegations of discrimination, the policies and procedures for denying care must be uniformly applied and implemented by the physician in a non-discriminatory fashion.

• What are the potential malpractice risks associated with COVID-19?

Preventable medical errors are a leading cause of death in the United States. Naturally, there will be potential malpractice risks associated with COVID-19. As with all areas of medical practice, there is risk where there is negligence. Generally, “negligence” is the failure to take proper care in doing something. As always, physicians can reduce the risks associated with their practice by being up-to-date on the latest best practices and accepted standards of care. In the case of COVID-19, the potential risks may stem from the failure to identify COVID-19, the failure to recognize the seriousness of an infection, the failure to promptly treat the infection, or the failure to make appropriate referrals for specialty treatment.

Even as public health authorities around the world work with physicians to treat patients infected with COVID-19, a key part of preventing both deaths and the spread of the infection is for health care professionals, hospitals and health systems to have accurate and up-to-date information about COVID-19. Because the information is constantly changing, medical providers must commit to tracking the evolving situation. Reputable organizations, including the American Medical Association (AMA), are providing physicians a library of the most up-to-date resources from the Journal of the American Medical Association (JAMA), the Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO). The CDC continues to update its infection prevention and control guidance specific to COVID-19, including eight key tips that should be followed, to ensure that medical providers are providing the best possible care in the face of this outbreak. However, the medical provider must do the work to seek out and absorb this new information. Otherwise, the provider is willfully “flying blind,” and he/she is likely flying toward potential risk.

The AMA encourages physicians to stay up to date on this evolving situation and has committed to providing updated COVID-19 resources for all health professionals, as well as for the general public. In West Virginia, an information hotline about COVID-19 has been created by the West Virginia Department of Health and Human Services. Operators are available around the clock to provide information about COVID-19, the risk to the public, and the state’s response. In announcing the toll-free 1-800-887-4304 hotline, Dr. Cathy Slemp, West Virginia’s State Health Officer and Commissioner of the Bureau for Public Health, said:

“We recognize that as the number of national cases grows, the risk of a confirmed case and community spread in West Virginia becomes more likely. Establishing the hotline provides access to experienced and knowledgeable staff who can answer questions West Virginia residents and providers may have. It can also link them with guidance and tools they can use to reduce the effects of COVID-19 on themselves, their families and their communities.”

Dr. Slemp also announced that testing for COVID-19 now can be performed in-state by the laboratory at the Bureau for Public Health.

• Are there other liability risks to consider?

Under West Virginia common law, a business owner who allows third parties to enter upon its premises for business purposes – including but not limited to patients, vendors, employees – owes these individuals a duty of “reasonable care” to protect them against hazards at the premises which are not “open and obvious.”

In the case of COVID-19, there is a potential question of fact as to whether these individuals are, or should be, aware of the risk of encountering patients infected with COVID-19. To clearly address this issue, health care providers should post signage that specifically warns business invitees of the potential health hazard associated with COVID-19.

To mitigate the risks associated with patients and employees spreading COVID-19, health care providers can follow a few relatively simple steps. First, providers should implement a triage process for identifying patients suspected of having COVID-19. These patients should be required to wear face masks and should be placed in a separate room away from other patients while they await treatment. Because the virus is said to travel up to six feet in the air when someone coughs or sneezes, the CDC recommends maintaining at least that distance between the patient and all others to prevent the spread of COVID-19.

In a hospital setting, the identified patient should be placed in a “negative pressure” isolation room, which is designed to release the air from the patient’s room outside, instead of recirculating it throughout the rest of the facility. Historically, these types of rooms have been used to treat patients with diseases like tuberculosis and measles.

Next, the health care provider will need to take affirmative steps to keeping its staff safe. Again, I addressed many of these employment-related issues in the previous edition of the West Virginia Health Care Law Blog, but it is worth repeating that all staff who interact with infected patients should be wearing gloves, protective eyewear, surgical facemasks and disposable gowns. Employers also need to implement sick leave policies that are nonpunitive, flexible and consistent with all applicable laws, including but not necessarily limited to the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Occupational Safety and Health Act (OSHA), and West Virginia Workers’ Compensation laws, public health guidance.

Further, steps should be taken to limit the number of staff members who interact with any infected patient. In an inpatient setting, infected patients should not be allowed to have direct visitors. Instead, patients should utilize telephone and/or video chat options to communicate with friends and family.

At this time, there is not a known treatment for COVID-19. Accordingly, current treatment methods are limited to addressing a patient’s symptoms, which may include controlling the patient’s fever, administering IV fluids and monitoring lung function to prevent permanent pulmonary necrosis. Depending on the patient’s demonstrated shortness of breath, a ventilator may be required to assist with breathing.

• What else do we need to be doing to protect ourselves, our employees, and our patients?

Here are some of the CDC’s recommendations for physicians and other health professionals to protect themselves when caring for COVID-19 patients:

• Minimize the chances for exposure by planning and implementing COVID-19 containment measures before the patients begin arriving with the infection.

• Assume that every person is potentially infected and adhere to standard, contact and airborne precautions, including the use of eye protection.

• Create procedures for monitoring, managing and training visitors.

• Implement engineering controls to reduce or eliminate exposures by shielding health professionals and patients from infected individuals. For example, medical providers can utilize existing spaces or erect physical barriers and partitions to separate infected/exposed patients from others within the waiting room and triage areas.

• Provide job-related education and training to staff regarding procedures to prevent the transmission of infectious diseases and the use of standard, contact and airborne precautions. Whenever respirators are required, all health professionals must be medically cleared, trained and fit-tested for respiratory protection device use.

When trying to navigate all these complicated laws and issues, it is easy for health care professionals to feel confused and overwhelmed. When such frustration sets in, it is important to seek experienced legal advice. The Bowles Rice Health Care Group can assist health care professionals in understanding their legal rights and obligations.