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State order gives doctors enhanced protections

Albuquerque Ambulance EMTs wheel a patient on a gurney in front of Presbyterian Hospital near Downtown Albuquerque in November. An executive order signed by Gov. Michelle Lujan Grisham last week seeks to reduce doctors’ legal liability if they are forced to ration care due to the COVID-19 pandemic. (Adolphe Pierre-Louis/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

New Mexico Gov. Michelle Lujan Grisham has moved to reduce doctors’ exposure to lawsuits as they prepare to practice in a worsening COVID-19 climate that one medical association is likening to a “war zone.”

In an executive order issued Friday, the governor said the state could be just weeks away from implementing “crisis standards of care” – standards that outline how to ration medical resources when need exceeds availability.

Gov. Michelle Lujan Grisham

Her order calls upon the state to provide a new COVID-19 credential for physicians, nurse practitioners and other advanced health care providers treating patients with the virus or believed to have the virus. With credentials, they will be considered public employees for the purposes of the state’s Tort Claims Act.

That means the state is essentially the doctors’ underwriter, said Annie Jung, who represents about 3,000 physicians as executive director of the New Mexico Medical Society.

“It’s not total immunity, by any stretch of the imagination, but it does go a long way to protecting the physician who is going to be practicing basically in a war zone,” Jung said. “It’s not just a normal day-to-day scope of practice that the physicians and nurses are facing.”

Credentialing would begin if New Mexico moved to “crisis care” standards through a declaration by the state health secretary.

A declaration would follow a recommendation from the state’s Medical Advisory Team – a group of health, legal and ethics experts – which would consult with the state’s hospitals, according to the governor’s order.

New Mexico hospitals are already working under “contingency care,” meaning patient demand exceeds standard resource availability but can still be met through adaptation and conservation efforts.

Crisis care is required when those contingency efforts are no longer sufficient. The Medical Advisory Team has developed a crisis care protocol for triaging patients and determining, for example, who gets a ventilator when there are not enough for everyone who needs one.

Lujan Grisham’s order says that “crisis care” obligates providers to do “what is best for everyone in the state” rather than what is best for individual patients. Projections show crisis care standards may be needed over the next several weeks, according to her order.

“If ‘Crisis Care’ standards are implemented, health care professionals will be asked to assist in additional areas outside their scope of practice and to provide support, in any way possible, with the treatment and care of those infected with the COVID-19 virus and to stretch limited resources beyond usual and customary practice,” the governor’s order says. “Providers have raised concerns about their legal protections when asked to address the extraordinary demands of treating New Mexicans with and without COVID-19 during this heightened medical surge.”

The governor’s order also invokes action by the state’s insurance superintendent, who on Monday issued three COVID-19-related directives. One prohibits insurers from denying malpractice coverage to qualified health care practitioners providing medical services “in a different specialty rating” due to COVID-19 and prevents malpractice liability insurance policies from excluding, limiting or modifying claims against health care providers “arising from the diagnosis, misdiagnosis, failure to diagnose, treatment, or failure to treat COVID-19.”

Another instructs insurers to “promptly and accurately” reimburse doctors and other clinicians for treating COVID-19 patients, even if it occurs outside their normal specialty or place of service, noting that many have been called into hospitals where they don’t normally work.

Insurance Superintendent Russell Toal wrote in the order that his office “wants to be sure that these community heroes receive the compensation owed to them for their services and appreciates payers’ efforts to be sure that happens in a timely manner.”

Jung said actions by the governor and superintendent combined with a recent New Mexico Medical Board vote to essentially shift how physicians are judged during the COVID-19 crisis have provided several welcome protections. Crisis care standards, if adopted, would be deemed “generally accepted health care standards.”

“Hopefully, we don’t get (to crisis care), but this does help support the clinicians during this time that they’re going above and beyond at personal risk,” Jung said.

Troy Clark, president and CEO of the New Mexico Hospital Association, said that although the governor’s order does not afford providers immunity from lawsuits, “it does limit their exposure” by granting the same protections afforded public employees.

“We are grateful for the efforts the governor is making through this executive order – given the current authority level she has within the state of New Mexico – to recognize the need for protections for physicians and hospitals. However, we also look forward to working with the Legislature to enhance our public health emergency act protections for providers to receive immunity protections during a public health crisis,” said Clark, whose association encompasses 46 hospitals.

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