Bloomberg Law
March 24, 2020, 8:01 AM

INSIGHT: Hospital Liability, Infrastructure Concerns During Coronavirus

Lindsay Lowe
Lindsay Lowe
Wolfe Pincavage

The recent Covid-19 global outbreak has shed light on the challenges and gaps within our health-care system in the U.S. These uncertainties provide an opportunity to strengthen our system and avoid potential liabilities, particularly in the ICU and long-term care settings.

One of the main challenges of the Covid-19 outbreak has been the strain placed on the health-care system to meet the increased demand for ICU beds. Due to increased concerns surrounding the symptomatology of this disease and spread to vulnerable populations, hospitals have experienced an influx of patients seeking ICU care.

The American Hospital Association states that the total number of ICU beds in community hospitals is approximately 97,776, many of which are currently in use. The burden placed on the health-care system as a result of chronic Covid-19 cases, coupled with the preexisting strain on resources, has led to a shortage of beds and a need for a rapid and effective solution to address this shortage nationwide.

State authorities are aware of the limited space and have taken steps to expand hospital capacity by repurposing wings, building tents for drive-by testing, and outfitting unused spaces to treat patients infected with Covid-19.

The System Needs Changes

Changes must be made within the system to ensure that the needs of patients are met to combat the lack of space. At the very least, health promotion and prevention initiatives should be in place to encourage individuals to engage in proper hygiene, self-isolation, and social distancing practices to “flatten the curve” and prevent the spread of this virus.

State authorities should transmit effective health communications to ensure proper health-seeking behaviors, thereby reducing unnecessary care-seeking behaviors and the burden on our health system. Health systems should implement and educate all health-care staff on policies for adequate identification, surveillance, and triage of individuals at risk for complications associated with the Covid-19 infection.

While the federal government has provided states with tens of thousands of respirators and protective gear for health-care workers, these supplies are at risk of shortage, due to the continued rise in Covid-19 cases across the U.S.

Some hospital systems have rolled out limited visitor policies and have set precautionary measures for patient intake. Health-care providers are advising patients to call before visiting the emergency department, and encouraging patients with scheduled elective procedures to postpone appointments to preserve protective gear for health-care workers and to prevent the spread of this virus. As with quarantine protocols, this issue reflects a need to address supply chain shortages through effective planning in preparation for emergency response.

With Covid-19, nursing homes, assisted living facilities, and other long-term care facilities face the challenge of keeping their patients safe and preventing the transmission of Covid-19 to these vulnerable groups. In the current climate of the Covid-19 outbreak, there have been cases where patients from nursing homes present to the emergency department for treatment and upon discharge are refused readmission to the nursing home due to concerns of potential virus transmission to others. This, in turn, creates liability concerns for hospitals that must house these patients until they can be reasonably discharged to another nursing facility.

Not only are there liability concerns of limited hospital beds that could be used by patients in greater need of services, but there are also financial concerns as to whether the hospital will receive reimbursement for health-care services, that could have been provided at a lower level of care. Such liabilities also include potential lawsuits against providers by individuals who may have contracted Covid-19 while in the ICU or long-term care setting due to failure to implement and adhere to proper protocols.

Mitigating Liabilities

In consideration of these potential liabilities, especially for vulnerable populations such as the elderly, health systems need to implement emergency preparedness and response protocols. The priority of the health system should be to provide care to its patients.

In efforts to preserve the number of hospital beds available, the health-care provider should first identify whether the patient requires hospital admission or whether the patient could be treated at a lower level of care. Upon admission, the health-care provider should then verify the patient’s insurance coverage for financial purposes. Throughout the patient’s stay, potential and confirmed Covid-19 cases should be monitored to prevent avoidable transmission.

Covid-19 has presented a unique challenge for the health systems globally and provides the chance, particularly for ICUs and long-term care facilities, to address potential liabilities by establishing effective preparedness and response protocols. A vital component of these initiatives will be to prevent avoidable transmission through effective quarantine procedures, early detection, and prevention. Although the spread of Covid-19 has presented an unavoidable challenge, the role of the health system is to reduce liabilities by controlling and containing the spread of disease and providing effective treatment for patients in need.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Lindsay Lowe is an associate attorney at Wolfe Pincavage, a Florida boutique law firm. With an entire career dedicated to public health and health-care law, Lowe is exceptionally well-versed in health-care-related matters and a variety of transactional, regulatory, and managed care matters. Her expertise was honed through her years of representing health-care providers in health-care licensure, health-care fraud, waste and abuse, and health-care compliance matters.

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