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Top Ten 2021: Risk Management and Professional Liability

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Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2021. In the tenth episode, Bob Paskowski, PYA, speaks to E. Dale Burrus and Lauren M. Nelson, Spencer Fane LLP, about the ways in which the COVID-19 pandemic has impacted health providers in their management of risk and heightened the awareness of long-standing risk issues. They discuss issues related to provider burnout, patients with non-COVID conditions, state-enacted immunities from prosecution, the increased use of telehealth, cybersecurity, and discrepancies in health care. Sponsored by PYA.

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Speaker 1:

The American Health Law Association is pleased to present this special series highlighting the top 10 issues of 2021, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. Support for A H L A in this series is provided by P Y A, which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business valuations, and fair market value assessments, and tax and assurance. For more information, visit pya pc.com.

Speaker 2:

Good morning, and welcome to ALA's Top 10 podcast series. Uh, this is Bob Paszkowski from p y a and today we will be discussing one of those top 10 topics, namely risk management and professional liability. I would like to introduce Dale Burris and Lauren Nelson from Spencer Fein, who authored the article earlier this year. Good morning, Dale and Lauren.

Speaker 3:

Good morning. Good morning.

Speaker 2:

And would you like to provide a little brief background on yourselves?

Speaker 3:

Sure. This is Daniel Burris. Um, Lauren and I have been practicing together for many years and, and recently joined the law firm of Spencer Fame. Our practice has been almost exclusively representing healthcare providers, uh, working on risk management issues, uh, medical malpractice issues, um, and all the risks that that healthcare providers face. Um, and we are very happy to be here.

Speaker 2:

So today we're here to talk more about the article and hopefully the aftermath of the, the pandemic. As we all know, there are many ways Covid has impacted health providers in their management of risk and have heightened awareness and longstanding risk issues. So, Dale, I'll start with you. As it relates to safety, what do you see as some of the most prevalent issues that providers are facing?

Speaker 3:

Thanks, Bob. Um, as he stated, what Covid has done has, um, heightened some of the safety issues and clearly providers, um, have to face safety issues that they had before the pandemic, but there are some that have been, um, brought forth because of the pandemic health disparity misdiag, or delay diagnoses because of Covid, um, are two that have come to light and we're gonna talk about them a little later. Uh, I think probably the first one and one that is across the board is that, um, is burnout by the providers. It can be pretty much everybody can, can kind of see that those providers who are at the forefront that you see the ed doctors and the ED nurses or critical care doctors and nurses, you can kind of imagine that they have burnout. And they do. And, and those are, um, extremely prevalent and, and many, and I'll, I'll provide statistics in just a minute, but many, um, have proclaimed that they're not going to continue in healthcare that they want out. Um, they want out either this year or next year. Um, and, and what you've seen is that if they survived, if they didn't get covid and many got covid and died, but, but if they didn't, they're suffering and they're willing to talk about it. Many are suffering from post traumatic stress disorder or depression. Some have even committed suicide, uh, cause of it. But it is not just the emergency room physicians and nurses or critical care, it's across the board, especially in the facilities where these patients have been. Um, your patient care assistance, even environmental specialists or food service, all are seeing what is happening and are suffering and have worn out something that many may not really understand a respiratory therapist. Um, cause very often they're the last people that a person who is going to be on the ventilator see. And so to have to face that over and over has, has burned the respiratory therapist out. And it is not just taking care of the patients. It is their frustrations too. They've expressed frustrations at facilities not being prepared. They have expressed frustration when they see people dying that the public is not taking covid seriously. And cause of that, they question whether the care that they are providing, um, is, is being, I mean, is it really important? Um, one study revealed that, um, critical care physicians burnout is up from 44% to 51. Rheumatologist is up to 50% infectious disease, 49%. And there was a story that I read of an anesthesiologist, and many of those are people who intubate, um, quitting because he just couldn't take it anymore. And interestingly to the studies reveal that women, um, because not only are they taking care of patients in the hospital, then they have to go home and, and they're usually the primary caretakers at home. And so that even though that providers have been heralded as heroes, they often don't feel that way. And they feel that the pandemic has really jeopardized their life and their livelihood. Many feel stuck because they can't retire. They can't quit because they've got so many loans, um, that have gotten them there in the first place. So, so this kind of tragic aftermath of covid is a problem for them individually, but it is a problem for healthcare providers in particular because now you have a workforce that is diminishing, that diminishing workforce is, um, having to take on more, and they are burned out. Um, those that are left, if they wanna quit and they can't or disgruntled, um, they don't have faith in their institutions, they don't have faith in, in the public. And all of this, as you can imagine, in providing care to those who come after is jeopardized. Um, and so it's a problem. It is a serious problem. It is being faced by, by providers in every single state. And, um, it doesn't matter if your facility is large or small. So, so I right now that seems to be in, it's, it's in the news all over, that seems to be one of a very major, uh, risk that is going on. And, and Lauren is gonna talk about how facilities, um, employers, those who manage the workforce can overcome this risk.

Speaker 4:

Yeah, so as Dale was saying, COVID 19 caused Very significant, uh, hardships on healthcare providers. And I, I don't think words even can describe what they feel because I mean, frankly, unless you are a frontline worker, you know, you're just, you're not in that situation. And so when you're talking about a field where, you know, nurses were already stretched thin, and now they're having to work longer hours, more days, it's just, it, it has been a, a bad situation, you know, in a, a short term emergency, for example, you know, we're here in Houston, we have hurricanes. Um, everyone can hunker down and work longer hours, but that, that dire time passes relatively quickly. But we're over a year into the pandemic. And so that burnout that Dale was talking about just keeps growing and growing. So what some facilities can do is really think about the, the long term, and we have to stop thinking, okay, let's just get through this week. And, and frankly, you need to do a little bit of both, but if hospitals and health practice groups can come up with some types of support systems to help the frontline workers and all of the other care providers that, that Dale mentioned, e you know, even the, the food services folks, everyone who is impacted and who has been helping take care of these patients, it really, it, it helps, um, some possible solutions are having extra therapists or peer support emphasizing that there's no retaliation. If a frontline worker needs mental health treatment, I mean, honestly, it, it affects everyone. So everyone needs some level of support. Some groups have started offering sabbaticals for the, for the folks who have been working sort of nonstop. And I think if, if facilities can offer things like a sabbatical or better flex schedules, that will help to retain some of the current staff, but also attract other staff, you know, to join a facility. Some groups are creating quiet rooms for timeouts, just where a, a frontline worker can go to escape the chaos. It's a, you know, it's literally a quiet room where people can go and decompress. Um, it's also helpful to really emphasize, you know, team decisions. Try not to make the decision about rationing care. Don't leave it up to just one person. You want to have more than one, one person involved, which will help to decrease some of the feelings of guilt, you know, that lead to the, the PTs D and things like that. So really, you know, risk manager should work with the HR department and the, uh, if you have a chaplain or other types of social support to help create those kinds of, um, support measures.

Speaker 2:

Yeah. Thanks, Dale, Lauren. Great. Great, great topic there. Um, let's switch gears a little bit and let's talk about patients that have not been diagnosed with covid. And we talked a lot about in this, in the first question around covid, but so how has Lauren, how has the pandemic affected patients not d diagnosed with covid?

Speaker 4:

Absolutely. So of course, covid affected all sorts of patients. Um, but honestly, the impact on the patients without COVID has been pretty significant. I was looking over some of the studies that have come out, and one number that I saw that was just, um, stunning to me, and again, this is just one statistic, but the drop in weekly screening for breast, cervical and colon cancer has dropped 86 to 94%. And people just, they're not, they haven't been going for routine care. You know, they're, they're skipping their annuals, uh, well woman exams, going to the dentist and things like that. And while, you know, you think, okay, I just missed one appointment, that adds up. And if patients have other comorbidities that aren't discovered, that can cause, you know, very dire consequences for their health. Um, in terms of litigation and risk management, we are seeing more claims filed that are indirectly related to covid. So while, while there have been covid 19 lawsuits filed, uh, primarily against nursing homes and things like that, we have seen it in uptick in cases where, you know, there were temporary staff who weren't really familiar with how an or, you know, was run. And so there could be a surgical error because of equipment. Um, we've also seen where judo short staff, there can be, um, delayed diagnosis. Films aren't read timely, and the patient's already left the hospital. And so, and no one calls to follow up and say, Hey, there's something concerning on this CT you, you need to come back for, for, uh, additional care. There's also have been, uh, claims about, or that, that arose from supply shortages. Now there's not enough equipment, there's not enough medication either because it's, you know, being used to, to treat the covid 19 patients or the manufacturer had to shut down because of covid 19. And so there's just, there's been a, a stall in getting those types of, um, supplies. And so that's, that's created, um, some problems. And we, we do expect that we will continue seeing those. And, you know, depending upon your state, what your statute of limitations is, you know, some states will have several more years for patients to file lawsuits related to covid or, you know, non covid claims. A lot of states have enacted immunities. Dale, you wanna go ahead and cover immunities?

Speaker 3:

Sure. So I looked at, um, what states generally were, are doing as far as is concerned, and almost every state has or is in the process of enacting something, uh, that provides protection as it relates to covid. The question is gonna come in through this litigation, I mean, through this legislation or through, um, uh, governmental edex executive orders, that whether it will cover issues associated that are not specifically directly related to covid, but in general, these amenities, um, state that they will be a meaningful care of covid patients of being exposed to covid or being due to covid. Of course, this is all for, um, as long as you were in compliance with laws. And as long as there was not any kind of gross negligence, just, just as some very interesting, um, commit is that two states have no immunity, no executive order, no pending legislation. That's Maine in Washington state. Idaho has immunity for businesses that are not healthcare providers. Um, the, um, and, and Nevada has an, and you talked about the claims as far as nursing homes, Nevada has immunity for all businesses, but they have specifically excluded nursing homes, hospice, intermediate care, um, from being part of the immunity protection. New Jersey, New Jersey similarly have legislation that pass for immunity, but now they have pending litigation that excludes nursing homes. Um, and I think that is probably cause of all the news related, uh, to the nursing homes. The, um, epicenters, the California and New York, uh, California has sim simply an, a legislation that establishes what the standard of care is as far as providing care. Um, New York granted immunity through March seven, um, but they've begun to roll back immunity for the specific thing that we were talking about that it, it does not, um, grant immunity for treatment that was not directly related to treating or suspecting covid or for any treatment related to the prevention of covid. So there is no immunity for that. Um, states that are only pending and so currently don't have it. Or Arkansas, Connecticut, Illinois, Colorado, Florida, Texas, which is just currently pending, um, and some others. So it is in the process, and probably by the end of this legislative session, all but two will have some sort of immunity, um, which would probably negate the need for any type of federal immunity. But that's, you know, there is the desire to protect those who provided care. The question will will be, is it, um, going to protect those who were not able to provide care? So I think that that's gonna be an interesting perspective as we go along.

Speaker 2:

Great. Thank you. Yeah. One of the things that came outta the PA pandemic was the increased use of information technology. It, so Dale, how will you, how will healthcare be changed due to the fact that there's been an increased use in it?

Speaker 3:

I think that the number one change, um, that we see that that has come out of covid is the use of telehealth. Um, the, the lessening of the restrictions on the use of telehealth has allowed it to be used, um, and has allowed to be it to be used very, very successfully. Um, the American Health Association, um, American Hospital Association is very, very supportive of the use of, um, telehealth and, and currently Congress is evaluating it. And so in a paper written to Congress, the AHA kind of talked about why telehealth is so important and, and what they talk about is the fact that there's been an increase in the access to specialists. But what is that is very important. And for those who don't have specialists within their own community, they don't have to drive to see them. They can do it through telehealth. It's avoided hospitalizations such that people can talk to a provider before going to the emergency room, um, before being treated, I mean, so that they don't have to be hospitalized. And the satisfaction, both from a provider standpoint, in a patient's standpoint has been overwhelming. And what they evaluated and determined was that outcomes were so much better with the use of telehealth. And so they have strongly, strongly encouraged it. And I, from a personal standpoint, I utilized, um, uh, telehealth with, with many of my providers, which was very convenient. Just as working from home here is convenient. And so it is a very important tool. So the question is gonna be, cause prior to Covid, there were restrictions on licensure. There were restrictions on payment. Um, and so are they going to lift those restrictions such that it can continue to be utilized in both the, uh, house of and the Senate or taking up bills, um, to evaluate. Uh, the house in particular is trying to eliminate geographic and originating site restrictions, um, authorizing CMS to, um, continue to pay for it, um, making permanent disaster waiver authority, um, that will allow it to be used in emergencies and disasters. And, and then they want to, to, to really study. It's used to see if this has beneficial. And a bipartisan group of, of senators are also, um, submitting, they just submitted legislation. Um, and so I think that it is, um, incredibly important for, for those, especially in rural communities, to be able to utilize it. The problem is that there are risks that associated with it. Um, it's not just reimbursement, but it is, you know, you've got different geographical locations that have different licensure, uh, requirements. You have different state malpractice laws. We've had cases in which people have wanted to do telehealth, but if they are treating the patient in the state that does not have the protections that Texas has as far as malpractice laws are concerned, it becomes a real issue. And so it's gonna be interesting to see what state and, and, uh, federal government do as far as telehealth. And so there are, there are risks associated with that, but with it, there have been other risks that have, um, come about because of covid, and we have seen because of covid. And Lauren, I think, is gonna talk about those from an IT perspective, um, what, what people are, are facing.

Speaker 4:

Yeah, sure. And one thing on telehealth, I saw a McKenzie study where in 2020 telehealth use increased from 11% to 46%, which is, I mean, that's amazing. And like Dale was saying, telehealth is here to stay. We just need to get all of the, the legal requirements, uh, nailed down. I also saw that there is a prediction that 20% of the US healthcare spending will be on telehealth going forward, which is, you know, very neat. So, so there are quite a few risks associated with things like telehealth EMRs, um, that healthcare providers need to be a aware of. And the biggest one that is hurting the healthcare profession right now is ransomware. And over the second half of 2020, the number of ransomware attacks was far exceeded what had been seen before. And hacking and unauthorized access and things like that has always been a problem. But last year, hackers took the opportunity, you know, they, they realized that so many people were working from home, working from their personal devices, their home networks, and there were significant security, uh, flaws that were exploited. So last year there were over 600 large data breaches and hacking, and IT incidents led to 67.3% of those BRE breaches while, um, unauthorized disclosures made up 21.5%. I mean, the fact that hacking led to 67.3% of those breaches is huge. And in fact, in 2021, the very, the first in January, February, they have seen at least what's been reported so far, um, that there were already 56 breaches, and there have been some investigations, and they have found that the price that people are willing to pay to obtain those unauthorized, um, or illegally obtained records has increased. And so there's a, a bigger push to get people's phi, which is driving, you know, the, uh, the increase in ransomware. I received a call from a client, they hadn't been able to access their EMR for eight days, and this EMR vendor com shut down their entire system. And so all of the providers using their EMR has been without access to their patient charts patient contact information for, I guess we're now on, on day nine, which is, it's, it's huge. And so, you know, this is a problem. It, it's here to stay. And so really what facilities need to do is pay attention to what's going on in the cyber security world. A lot of hospitals have increased their spending on it. And you know what that means for everyone else. You may have a, a good security system now, but if other institutions are getting stronger, better, uh, more thorough security measures, better firewalls and things like that, that means that your system will be weaker. And so you will be at, at greater risk of getting, um, hacked. And so you really have to stay on top of that. Covid 19 led to, I mean, besides telehealth, COVID 19 allowed for a lot of other, I think, pretty amazing technological ad advances. Um, there was a big push for home monitoring devices. So a patient doesn't even have to go into the doctor. They can wear a device at their home, which then communicates directly to the healthcare facility. And all of this helps improve, you know, patient's health. But from the provider standpoint, you need to make sure that those communication methods are secure, that no, you know, viruses or malware are being transported. So, so really it's making sure you have a very robust security, cybersecurity, um, system in place. And also, um, you know, I think this year will be sort of a year for catch up in the IT security realm because a lot of the healthcare IT workers sort of stopped focusing on security last year, and they were instead redirected to try to get all of the telehealth up and running and all of the, the home monitoring. And so this, this year, you know, you really need to make sure that your IT groups are patching any security holes, really running those security, uh, programs, uh, retraining staff, not just your IT folks but staff, you know, remind them not to, uh, open suspicious looking emails. And frankly, the e the, the scam emails have improved. It's, it's no longer just, you know, the prints from Egypt who needs a lender. I mean, these look very legitimate and with, with no typos and things like that. So you really do have to take some extra precautions to make sure that you are not, um, attacked. The, so one other thing that I, I'm really excited about in the IT realm is the predictive modeling and the use of artificial intelligence. And so o over the last year, a lot of the different, uh, hospitals and healthcare or, uh, medical schools have used the predictive models to figure out where COVID 19 will hit, which patients will be at greater risk of developing the severe symptoms and dying and things like that. So, you know, hopefully over, you know, the next few years we will be able to use some of the things that we learned during covid 19, you know, to improve healthcare.

Speaker 2:

Yeah, this is so interesting. I'm sure we could spend our entire podcast just talking, talking about this topic. Great information. So last question, Lauren. Um, the pandemic ha highlighted the discrepancies in healthcare. So what did those discrepancies reveal?

Speaker 4:

Yeah, uh, great question. So public health has always been a, a hot topic, and there have been lots of discussions about, you know, needing to get better access to the underserved communities, but it's always been just sort of a lot of talk. People try to do what they can. When, when the pandemic started and months into it, it became very clear that certain groups, um, were affected disproportionately than others. And what some of the studies have shown is that the racial and ethnic minority groups are at increased risk of, of getting sick, having more severe illnesses and dying from covid 19. And some of the, the studies have shown that it's, you know, sort of the unintended economic social and those secondary health consequences that contributed to that. And so what that means for, you know, your hospitals and, and healthcare workers is that we really do need to emphasize having better access for patients who, who don't have that access. You know, a big thing, it's like telehealth is amazing, but if you don't have internet, you can't really utilize telehealth. And so this is where the community, and frankly, Biden's administration is focusing on, on public health. And so I think we will see more of a push to try to get, uh, more centers that allow for access. So maybe not internet at your home, but you can at least go somewhere where you can access a computer to do a telehealth visit and things like that. And I think that hospitals will, will want to, and really need to start offering more programs to help serve, you know, the, the underserved areas and things like that. Um, and I know that the ACA has a lot in it that will help treat some of these, the health disparities. And Gail, do you wanna go ahead and touch on those?

Speaker 3:

So, so what is very clear from the current administration, um, is that they are taking healthcare, um, um, they, they believe it to be incredibly important. And of course, uh, Biden was part of the ACA and, and wants to continue it. I think what also is important is that the prior administration began the issues of, uh, price transparency. And Biden is continuing that, um, as far as, uh, as, as price transparency is concerned, um, this is, but he's, he's looking for this and a, as part of the prior administration, uh, specifically for hospitals, insurers, and drug prices. And the idea is, and those who are proponents of it, is that if you've got the price transparency, you've got, uh, competition and with competition, you've got a decrease in price, which will make healthcare more accessible. Um, and, and hopefully we'll assist with some of the disparities. The opponents, of course, believe that this is not helpful to patients. It does not bring down prices. They are already at the lowest prices that they can be in order to stay in business. And that what it will in fact do is cause problems with insurers and coverage and or, and make it to where they cannot function. So price transparency is becoming very, very, a hot ticket. It is going to, um, continue to be a hot ticket and it will be incredibly important. What is what and, and what we've had to do in, in talking about all of this, is so much is unknown. Uh, COVID brought about so much and everything is now in a state of flux. And what is it going to be? Um, in addition to price, uh, transparency, the, the provisions of the ACA that, um, are, are being modified. And honestly, I don't know all of those at this point because I don't know that Biden has made them that, that apparent. But what, what healthcare providers are facing, and this is incredibly important, not only from a financial standpoint, from an access standpoint, um, but it will also affect risk, is value-based, uh, pricing. What happened with hospitals is that the cause Covid took away some of their profit centers through the elective surgeries, through a number of, uh, diagnostic therapies. All of those types of things were put on hold, uh, cause of the restrictions of Covid and that hurt provide, you know, we had a whole lot of use of facilities, um, but those were emergency uses and the people that came and had private insurance who could pay for more costly procedures were not coming. And so what, what many providers are looking at now is a value-based pro, uh, provision of care, and that would be more of preventative. And it, and it, it beckons the old managed care model in which the idea would be that you would get paid for a lump sum and you would get benefit if the patient did well. And they're bringing that concept back, um, to have a more holistic approach to healthcare. And so, as Lauren was talking about, I think what, what we will see is if that becomes more and more prevalent, uh, risk and all of the departments within facilities in combination with providers outside of facilities, we're gonna be taking approaches to address preventative care, to address wellness, to address weight loss, you know, uh, smoking cessation, addiction services, all of those types of things that keep the patient well and to get paid from that standpoint. That is important for access because many of the individuals in a lower socioeconomic, uh, population don't, um, have the ability to have as much preventative care, and thereby they are using facilities as an emergency type situation, which is costly to them and costly to facilities. So if there can be a value-based, and if risk can take that into consideration, then individuals hopefully will begin with preventative care that will require less emergency, um, type of provision of care that, especially we saw with Covid and many suffered badly from covid cause of underlying health conditions. So I think Covid brought to light so many issues, not only from a risk, a liability, a technology, but it also brought to light all of the problems that we have in our healthcare industry. And in fact, I saw a study that talked about how other countries are viewing our health system and, and I think the problems that we had before Covid as we started out with, um, got highlighted by Covid and hopefully all of these types of addressing those issues, um, will finally be put into place and, and make our healthcare industry even stronger.

Speaker 2:

Great discussion this morning. I, I want to thank Dale and Lauren for their time this morning and sharing additional insight into risk management. I also want to thank our audience for their participation as well. And I hope everybody has a wonderful day.