by Josh King, General Counsel, RealSelf
We at RealSelf—just like so many providers and patients alike—are justifiably excited about the prospect of surgical and aesthetics practices reopening after weeks of shutdown. But practices will be reopening into a changed world. And in addition to all of the new protocols, practices, and methods being adopted—from contactless payments to virtual consults to “waiting room by text”—I’ve heard from a number of doctors concerned about the legal unknowns that go along with reopening.
Let’s see what I can do to ease your minds.
Here are some of the primary concerns I’m hearing about reopening into the ongoing COVID-19 pandemic, and some thoughts on minimizing the risk.
The Fear: Patients Will Sue for Contracting COVID at My Practice.
- The reality: This actually isn’t that likely. The wider the pandemic spreads, the harder it is to pin a case to a particular location or exposure. This makes it very difficult for someone to claim that COVID was caused by visiting your practice. What’s more, even in the event that exposure was tied back to your practice, a plaintiff would still need to prove that your negligence caused the exposure.
- Minimizing the risk: Thinking through your COVID processes goes a long way here. You already know that it’s not business as usual; you’re going to need to put in place all manner of heightened sanitation and social distancing protocols. So document everything, train your staff, and rigorously enforce compliance. You should also consider adding more COVID disclosures to your informed consent documents and process, particularly for surgical procedures.
The Fear: Patients Won’t Abide By My Practice Rules and Claim “Discrimination.”
- The reality: Despite the death toll, there’s a certain partisan undercurrent when it comes to believing that COVID is a real threat. This has led to a weirdly performative kind of non-compliance with social distancing guidelines. So I can’t rule out the possibility that you’ll get someone in your office who refuses to follow your protocols – and then loudly complains when you demand that they do so. The good news? You’re perfectly within your rights to “discriminate” against these patients, so don’t hesitate to show them the door.
- Minimizing the risk: Patients like this may be a pain, but fortunately, they are rare – and they are far more bark than bite. As long as you aren’t discriminating against them based on protected characteristics (like race, gender, etc.), it’s perfectly fine to send them on their way. And you’ll be doing your staff and other patients a favor by putting health first.
The Fear: An Employee Will Claim to Have Contracted COVID at Work
- The reality: At most, such an employee would have a workers’ compensation claim, and even that is dicey, given the uncertainty about where the virus was contracted in the current environment. So the only worries here are your employee’s health and the potential disruption to your practice, should you have to shut down and trace contacts.
- Minimizing the risk: Another area where sound hygiene and social distancing practices, rigorously enforced, will help minimize the risk of a staff member contracting COVID in the office. You also shouldn’t discount the powerful message that can be sent by your example as a leader. Over-emphasize the social distancing protocols in your own actions, inside and outside the practice, to maximize the chances that your staff will follow your lead.
The Fear: An Employee Will Claim That My Testing and Hygiene Protocols are Discriminatory
- The reality: Ordinarily, employers are justifiably leery about getting too deep into the health matters of employees. Privacy laws and the Americans with Disabilities Act loom large. But these aren’t ordinary times, and the imperative to stem the spread of COVID is critical. So it’s fine to mandate that your employees be tested or screened for the disease. It’s fine to send them home if they seem sick. And it’s even fine to call the local public health department to report employee COVID illness.
- Minimizing the risk: Have a thought-out, well-documented policy. Apply it consistently and enforce it rigorously. The EEOC has released this guidance that provides a lot of useful detail and support for your putting health concerns first.
The Fear: An Employee Will Refuse to Come to Work
- The reality: Your employees have a right to expect a safe workplace. But they don’t have a right to refuse to come to work based on unreasonable fear of exposure to COVID.
- Minimizing the risk: Procedures and communication is key here. It’s critical to have hygiene and social distancing protocols that are thought out, documented, trained on, and enforced. And communicate with your employees. An “unreasonable” fear of contracting COVID in healthy employees may be “reasonable” to employees with co-morbidities or compromised immune systems, or those who’ve been advised by their doctor to self-quarantine.
Ultimately, there are always risks inherent in practicing medicine and running a business. Short of retiring to a beach somewhere and never picking up a scalpel, readying a needle, or hiring an employee again, there’s no way to completely eliminate these risks. The goal, as always, is to work to mitigate and minimize risk. If you take the time to create, carry out, and model thoughtful procedures that put the health of your patients and staff front-and-center, you can reopen with confidence that there is little risk of these COVID-related legal issues materializing.
The information provided in this article does not, and is not intended to, constitute legal advice.
About the author
Josh King is the General Counsel for RealSelf, the web’s leading resource for consumers researching aesthetic procedures. Prior to joining RealSelf, he spent over a decade as Chief Legal Officer at Avvo, helping that consumer online legal resource grow from tiny startup to industry leader. Josh regularly speaks and writes on issues relating to digital media, communications, and professional ethics. He’s also been known to go on about bike commuting, politics, bourbon, and traveling. Read more of Josh’s thoughts on social media and the regulation of professional speech at his aptly titled blog, “Socially Awkward”.
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