All y’all. Let’s not spread misinformation about legal contracts (like your professional liability insurance) just as we should not spread misinformation about COVID-19. Social media posts discourage home visits by private practice IBCLCs (like me), suggesting professional liability (malpractice) insurance will not cover us in situations where we walk into and could contract/spread infectious disease.
I disagree.
Let’s unpack this a bit.
Professional liability insurance covers us when we are sued for NEGLIGENT care. Using excellent, professional, universal precautions is what protects us from losing a lawsuit if we are sued for using NEGLIGENT care.
We might beef up our precautions, being more conservative during this outbreak (like requiring ONLY parent and baby to be in the room during the consult, to mitigate exposure). We will want always-and-every-day to proactively protect ourselves by charting, charting, charting up the wazoo what we have done, how we discussed this with the parent, how they agreed to the revised rules, etc. etc. We will want to revise our policies & procedures manual to reflect our changed clinical care requirements. We will follow the universal precautions against infection we should be using anyway, explaining and highlighting all the steps to our clients/patients.
If I do all of the things I’ve suggested, and I go into a house, and *I* get sick from COVID-19, my professional liability insurance will not do one single thing to cover me. Because it is not meant to protect me when I get sick. I will have to have *worker’s compensation insurance* that covers situations where workers are ill/injured, and can’t go out and work. It is insurance to provide some financial support when one can’t work.
Doing everything super duper squeaky-cleanly will NOT prevent a lawsuit. People get sued all the time, for valid and invalid reasons. Your professional liability insurance provides you with a lawyer to answer those ridiculous, specious lawsuits (without you losing your shirt in legal fees). Because I assume that y’all are not practicing NEGLIGENT care, where you deserve perhaps to be sued …
How do I know all this?
(1) I am a lawyer and all trained-up on tort law.
(2) Before I started typing I read every single page of my CM&F professional liability insurance (yup, incl. all those added “endorsements” and “exclusions”). I got to the language online, and it was easy-peasy to do.
(3) I called and talked to a real live person at CM&F to get verbal confirmation of my interpretation of my professional liability insurance coverage and exclusions.
Let’s step back and think about this another way. If MDs RNs IBCLCs, DDSs, OTs, SLPs etc etc etc could get “sued” for getting or spreading illness, NONE of us would EVER be insurable. Because, um, we work in healthcare. Where the germs go.
Last word: NO, there is NOT any magic “consent” or “waiver” language you can whip up to protect yourself during a COVID-19 consult.
Think again about the implications. What possible incentive would there be for me to use BEST practices to avoid NEGLIGENT care during patient/client contact in a pandemic if all I had to do was get ‘em to sign away the right? This sort of nefarious legal shenaniganning has long been forbidden under the law.
Please. Do what YOU feel comfortable doing as a private practice IBCLC, including avoiding any client or patient contact at all. Avoid on-line consults if the mechanics and limitations just annoy you too much. And please understand: while virtual consults and telemedicine/telehealth are a thing, you definitely will NOT be meeting your legal and ethical standards (COVID-19 or not) by whipping out your iPad and doing Facetime consults. See this blog here, or here. EDIT ADDED 11 April 2020: NOTE that on 18 March 2020 the U. S. Department of Health and Human Services temporarily relaxed its enforcement of privacy sections of HIPAA/HITECH, to allow *more* social media platforms (previously disallowed) to be an option for telehealth care during the COVID crisis.
I suggest, across the board: “Let the excellence of your professionalism always precede you.” Including lots and lots o’ charting. Cuz one year from now we will all forget we were in the midst of the pandemic. Legal obligations and protections do not change in a public health care crisis. Healthcare and public health recommendations change swiftly. Please erase the false impression that you are not protected by your current legal structures and institutions, even in a time of crisis.