Liability considerations during the ongoing pandemic

What happens if a patient or visitor claims they contracted COVID-19 after a visit to my practice?

The risk of this type of claim against your practice is real, but it can be managed. In the event of a claim, you must be able to show that your actions met the generally accepted expectations for healthcare professional during COVID-19. If you take precautions and follow applicable guidance on operating your practice safely, you will be protecting your employees and patients to the greatest extent possible, while also putting yourself in the best position to respond to liability claims against your practice.

Steps you can take now

  • Review all of your insurance policies, paying particular attention to the key definitions (such as "bodily injury" and "wrongful acts" and to the exclusions). If you purchased your insurance through a broker, ask the broker for help. Otherwise, call the carrier or ask your attorney for advice.
  • Adopt strict safety protocols in your practice—paying attention to local, state and federal guidance. This is the single-most important action you can take to protect your employees, patients and your practice. In the event of a claim, your safety protocols will be subject to scrutiny. You want to be in a position to show that you took steps in compliance with local, state and federal directives and recommendations, as well as professional best practices.

Sources of potential claims

  • Patients.
  • Visitors (such as a caregiver accompanying a patient).
  • Employees.

Note: Employee claims based on failure to adhere to rules regarding family and medical leave, accommodations for disabilities or wage and hour issues will be more common than claims based on exposure to COVID-19. For guidance on employment rules, see this previously published guidance on the AOA COVID-19 page.

Insurance considerations

A claim from a person claiming they suffered an injury due to exposure to COVID-19 should be reported to every insurer that may offer coverage. This could include:

  • General liability. General liability insurance offers coverage for instances when an individual claims they suffered bodily injury due to negligence or dangerous conditions existing at your business. General liability insurance would likely cover claims from individuals other than employees—including visitors or third-party claims. General liability insurance coverage typically contains an exclusion stating that it does not apply to employment-related claims (which are meant to be covered by your workers' compensation policy). General liability insurance is often part of business owners or other "package" policies, combined with other coverages, such as property and auto coverage.

  • Workers' compensation. Workers compensation insurance normally applies to injuries suffered in the workplace. In a workers' compensation claim, there is no need to establish liability—as long as the injuries are found to be work-related, the worker receives benefits based on the extent of their injuries.

    Normally, diseases are only covered by workers' compensation if they are considered occupational diseases—for example, a lifelong miner who contracts a lung disease. Diseases that are prevalent in the community are not ordinarily covered by workers' compensation, even if the worker could show that they contracted it in the workplace. However, some states have already adopted rules to allow frontline health care workers to apply for workers' compensation if they contract COVID-19—and it is likely that more states will do so—and possibly expand the category of workers who can apply for workers' compensation for COVID-19 infection. If an employee brings a claim that is determined not to be covered by workers' compensation insurance, it may be covered by a different liability policy, similar to a claim brought by a non-employee.

  • Employer liability. Employer liability insurance, sometimes referred to as Employment Practices Liability Insurance or "EPLI", provides coverage for employment-related claims that are not injury related. Usually this means claims of discrimination, wage and hour violations or similar claims. However, EPLI coverage often will cover bodily injury liability claims from an employee that are not covered by workers' compensation (because they are not considered work-related) or the general liability policy (because of the employee claims exclusion in the general liability policy). This "gap" coverage could be very valuable in the event of a claim by an employee.

  • Professional liability. Professional liability insurance (a.k.a., malpractice insurance) would likely provide coverage in the event of a claim from a patient alleging they contracted COVID-19 due to negligence on the part of the doctor providing treatment to the patient (or staff providing treatment under the supervision of the doctor).

A note on exclusions

It is common for insurance policies to contain exclusions to prevent overlapping coverages. For example, a general liability policy will contain exclusions for claims that are intended to be covered by a professional liability policy or workers' compensation policy. A communicable disease exclusion is different. This type of exclusion is used to limit the insurer's exposure to certain types of claims, and there is no guarantee that another policy will apply to the situation. The presence of an exclusion could leave you without coverage at a critical time.

What about liability waivers?

Waivers of liability have limited benefit in a health care context. They cannot be used to protect against claims based on professional negligence or gross negligence, and state law often further limits their use and effectiveness. There is also a risk that the presence of a waiver will give a false sense of security. As part of the review of your insurance policies, we recommend contacting your insurance broker or carriers to ask if a waiver makes sense given your coverages and the location of your practice. You may also reach out to your state board of optometry for guidance. If they are found to provide some limited benefit, that benefit should be weighed against any downsides related to their use.

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