Malpractice claims have not gone away because of the COVID-19 pandemic. However, malpractice has changed during these unprecedented times to reflect the constant shifts in medicine and adaptations to lockdowns, infection risks, and safety protocols, among other factors. At Fall Clinical 2020, Whitney High, MD, presented on malpractice concerns during the COVID-19 pandemic.1 He discussed what dermatologists need to know about how the pandemic has changed malpractice in an interview with The Dermatologist.
Dr High is professor of dermatology and pathology, clinical vice-chairman, director of the dermatology clinic, and director of dermatopathology at the University of Colorado School of Medicine in Aurora.
The Dermatologist: How has the COVID-19 pandemic either intensified or created more malpractice concerns for dermatologists?
Dr High: The pandemic has not necessarily intensified malpractice issues, but it has only CHANGED the issues that would be in contention during a malpractice claim. Malpractice seeks to identify a party injured by care that was beneath a reasonable standard at the time it was rendered. The standard of care is always established de novo (for that particular case) based upon the facts unique to it.
For example, during the peak of the COVID-19 pandemic, it was the (temporary) reasonable standard of care to delay definitive excision and sentinel node sampling for melanomas that did not involve the surgical edge at the time of first sampling.
In fact, in Colorado, there was a period when all non-emergent surgeries were deferred by government order. Ergo, some “definitive” surgical treatments for cancer were deferred several months. While this would not have been the normal standard of care, it does not mean that the care rendered was not reasonable for the circumstances of a global pandemic. This is what will be argued.
The same thing is true for “virtual” (video/online) appointments conducted during pandemic. If an allegation of malpractice comes to light based on one of these telemedicine appointments, the provider will not be judged by what a reasonable dermatologist would have done during an in-person visit. The care will be judged based upon what would a reasonable dermatologist would have done in the same type of “virtual” visit, with the same technological limitations (cell phones, webcams, etc) in place.
Similarly, use of immunosuppressive medications during a global pandemic is more complicated. During this extraordinary time, practitioners will want to document well an informed consent with regard to the risks and benefits of an immunosuppressive medication(s), any uncertainties that exist, instructions should the patient feel unwell while on the immunosuppressive medication(s), and offer any reasonable alternatives.
Lastly, another type of situation that the COVID-19 pandemic has created, which is new, is the duty of a business owner has to protect employees and patients who visit a place of business, but that is not malpractice, per se.
Ergo, the COVID-19 pandemic has not so much increased or created new malpractice liabilities, as it has shifted the grounds upon which malpractice would be judged.
The Dermatologist: What malpractice issues should dermatologists keep in mind during the pandemic?
Dr High: As I indicated, dermatology professionals want to make sure they are providing reasonable and prudent care that is fitting for the circumstances. For example, if during the peak of lockdown, dermatologists had to evaluate pigmented lesions by video chat and crude video devices that were owned by the patient (ie, an iPhone), this would be reasonable. Now that most lockdowns have lifted, when faced with a challenging pigmented lesion, if the dermatologist does not ask the patient to come in for an in-person evaluation and dermoscopy, that is probably no longer reasonable care.
However, use of immunosuppressive medications is complicated by the COVID-19 pandemic. Most organizations recommend immunosuppressive medications be continued, particularly when the disease under treatment is potentially life-threatening. To be prudent, it is advisable to have a well-documented conversation about the unknowns of using immunosuppressive medications during the unprecedented pandemic. Various other options for treatment, should they exist, should be discussed. Other strategies for mitigating infection risk (eg, masks, avoidance of crowds, maintenance of overall good health practices) should be advised. The patient should be told if they develop symptoms or test positive for COVID-19, they should expect the immunosuppressive regimen to be altered by those involved with his/her care. The American Academy of Dermatology has published some guidelines on the use of immunosuppressives, which were updated as recently as October 15, 2020, and are available online.2
The Dermatologist: What can dermatologists do to avoid these issues?
Dr High: It is important for dermatologists to stay up to date on the latest recommendations by the Centers for Disease Control and Prevention for social distancing, stay up to date on local- and state-mandated lockdowns (particularly if they go back into place this fall), and even stay up to date on the Office of Civil Rights for the Department of Health and Human Services regarding the ability to have certain non-HIPAA compliant video visit practices tolerated during the COVID-19 crisis.
The Dermatologist: What should providers do if they have a malpractice claim filed against them during the pandemic?
Dr High: The correct advice, whether during or not during the COVID-19 pandemic, is to immediately contact your malpractice insurance carrier and/or a local licensed attorney about any allegation of malpractice so filed.
The Dermatologist: What key takeaways would you like to leave with dermatologists?
Dr High: The COVID-19 pandemic has altered the way reasonable and prudent dermatologists practice dermatology. It has altered how dermatology is practiced (video visits, particularly during lockdown) and altered the pattern for treating malignancy (with reasonably deferred surgical care commensurate with the police actions of state governments). It has not necessarily “created” new liabilities for patient care and malpractice, although it may have created new liabilities regarding employee/patient protection (ie, protecting well patients from sick patients, protecting workers from sick patients, and protecting patients from sick workers), but that is not malpractice, per se. With regard to these latter issues, COVID-19 has no doubt created new perils and liabilities regarding running a business, and that is a separate concern from malpractice. Personally, I might be more concerned with the liabilities of running a business during the pandemic than malpractice, although they both merit some consideration.
- High W. COVID-19 malpractice issues. Presented at: 2020 Fall Clinical Dermatology Conference; November 1, 2020; virtual.
- Guidance on the use of immunosuppressive agents. American Academy of Dermatology. October 15, 2020. Accessed October 30, 2020. https://www.aad.org/member/practice/coronavirus/clinical-guidance/biologics