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Medical malpractice carriers giving, getting leeway in face of COVID-19 pandemic

Medical malpractice insurers have responded with flexibility as their clients deal with liability concerns produced by the COVID-19 pandemic.

That flexibility has included advice on which treatments can or cannot be covered, as well as easing coverage restrictions on telehealth and staffing issues.

Chris Zuccarini, managing director of healthcare for Risk Strategies Inc. said carriers like Doctors Co. An Interinsurance Exchange and Berkshire Hathaway Inc. subsidiary Medgroup Inc. are communicating with their insureds and trying to help any way they can.

"I told my team that carriers are going to be as flexible as they can they be, especially in this environment and knowing the potential crisis here," Zuccarini said in an interview. "They understand the gravity of the situation."

Medical malpractice insurance covers physicians and other healthcare workers from claims that their services led to patient injury or death. Misdiagnosis and prescription and surgical errors are among the most common medmal claims filed against healthcare workers.

READ MORE: Sign up for our weekly coronavirus newsletter here, and read our latest coverage on the crisis here.

Zuccarini, whose company works with more than 5,000 physicians and healthcare practices, said there has been a change in attitude toward telehealth, which had required a detailed review of protocols put in place by physicians, medical groups and hospitals.

He said carriers are now agreeing to cover telemedicine because they "realize that with the potential amount of people that doctors will be seeing and treating they've got to be more flexible."

Zuccarini also said that one of his carriers has said that any doctors who have retired and been asked to come back to help out a group or a hospital would be covered under previous liability insurance.

The federal government last week gave even more leeway to Zuccarini's clients and the carriers under the Public Readiness and Emergency Preparedness, or PREP, Act.

Health and Human Services Secretary Alex Azar on March 12 issued a declaration providing liability immunity to healthcare providers, suppliers, drug manufacturers and other entities "caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures" against the coronavirus. Liability would not be reduced in cases of "willful misconduct."

Zuccarini said the federal government's declaration was a "great solution" for healthcare providers concerned about claims for missed diagnoses or failing to properly treat a patient. He said that the declaration frees up healthcare providers to do anything and everything they can to try and get the pandemic under control.

"I think any healthcare provider on the front lines is scared [because] this is so new," Zuccarini said in an email. "To think they could be making treatment decisions that could trigger a malpractice claim would cripple the system. It's an unprecedented step."

Tiger Joyce, president of the American Tort Reform Association, said concepts of liability and delivery of healthcare have been "fundamentally altered" by the pandemic.

"It has affected considerations about duty of care, appropriate decision making ... with respect to looking at a particular scenario, or a particular patient or circumstances," Joyce said in an interview. "It is a circumstance that's ... truly unprecedented."

The passage and signing of the Families First Coronavirus Response Act on March 18 added another wrinkle to the liability landscape. One of the provisions in the law said personal respiratory protective devices, such as the N95 mask, are "covered countermeasures" that are eligible for certain liability protections, something that was not covered under the PREP Act.

The president of a major supplier of masks and other protective gear in New Jersey and New York, told the New York Post that the new law is a big deal because it lifts the burden of potentially being sued if, "God forbid, if someone wears the respirator and ends up with the virus."