This proposal will save lives the minute that states and other authorities adopt it.
We are in urgent need of emergency laws, or executive orders, in every state that temporarily relax the legal standard of medical malpractice.
This is not an end-run to bring about tort reform. It is an emergency step, necessary in a national emergency, to save lives. Here’s why:
Normally, when emergency physicians admit a patient who has a small but non-trivial chance of having a serious medical problem that further testing and observation may reveal, we do not hesitate to do so.
Our rationale is twofold. First, the risk of the patient catching a hospital-acquired infection is lower than the benefit of detecting a more insidious medical problem. Second, the legal exposure is too high to do otherwise. Even if we are wrong only 1 out of every 100 or 1,000 times, the legal liability of one mistake can ruin careers and bankrupt medical practices. So, we admit.
But coronavirus has changed that calculation. If a physician is evaluating a patient who may have had a stroke, but who did not go to an emergency room until a few days later, we would normally perform a “stroke work-up” to gather more information. We get a CT scan of the brain in the ER, and in some cases, a second more detailed one with dye. We check some bloodwork and make sure that the symptoms aren’t being caused by a “stroke mimic,” such as an infection that can temporarily worsen the symptoms of a previous stroke, for instance. This all takes a few hours.
However, even in a patient whose symptoms have disappeared and who is “back to baseline,” we often admit them to an observation unit or to the hospital to complete the work-up. That usually includes an MRI and other tests, which can take up to a day or more.
But, if we are being honest, we all have come to learn that the “yield” of investigations such as the one described here is pretty low. These patients are not eligible for urgent treatments. About the best that neurologists can do is offer medications that might prevent a future stroke.
A week ago, I would have taken these steps with patients without a second thought.
If I saw a case like this now, I would feel reckless admitting such a patient. Too many other people need those beds. Times have changed.
But to let that patient go, we urgently require legal protections that permit us to discharge such patients without fear of legal ramifications.
This is not triage. It is a protection that doctors need to avoid exposing uninfected patients to the virus and for ensuring we will have capacity to treat those with advanced cases of covid-19
If we don’t act now, we will exceed our hospital capacity far sooner than we can afford as a society.
The change need not, and should not, be permanent. A three-month suspension would be enough. But we need to make this change immediately.
Changing the legal standard will make it possible for doctors to immediately treat more of the most critically ill patients, while legally protecting them in sending less sick patients home. It will determine how many patients we can treat before the system ceases to function.
Already, far too many people are turning up at hospitals asking for coronavirus tests and more. We need to be able to turn away, without fear of lawsuits, those patients and those with other conditions who can wait for help or find it elsewhere.
I know doctors, and I know hospital administrators and lawyers. Removing these concerns will change physician behavior immediately.
Otherwise, we will be forced to make decisions about who to hospitalize that are potentially dangerous for patients who do not yet have coronavirus, and worse for those coming tomorrow who do.