The COVID-19 pandemic has adversely affected countless individuals and aspects of life. The end of the pandemic remains uncertain. Measures to mitigate the impact of the pandemic on the management and treatment of cancer patients have been implemented. At the outset of the pandemic, the CDC recommended delaying all nonessential procedures such as breast cancer screening exams “until the pandemic is over.”
This guidance has evolved throughout the pandemic, such as prioritizing in-person treatment related to the evaluation and treatment of breast cancer patients. For example, it has been recommended that breast cancer patients requiring psychological support or past breast cancer patients with no change in condition may be referred to telehealth appointments. On the other hand, those with a recent diagnosis of invasive breast cancer may be placed at a higher priority. Whenever possible to reduce access to the hospital, a breast cancer patient may be referred to telehealth appointments if their medication regimen includes oral chemotherapy or endocrine therapy. Further, lower priority breast cancer patients must be afforded the best supportive care possible at home and enhanced symptom control via telehealth appointments. As another example, patients who have experienced a postoperative complication, such as an infection, should be placed at the highest priority for in-person evaluation.
Documenting Telehealth Visits
When breast cancer patients are provided telehealth appointments, thorough documentation is essential to demonstrate a physician met the standard of care. Specifically, the note should reflect the judgment employed to evaluate whether the patient’s current condition permits telehealth appointments or whether in-person management, evaluation and treatment is required. Further, whenever possible, physicians should consider scheduling a breast cancer patient’s imaging exams and blood tests near their home to limit travel.
Overall, prioritizing care for patients with breast cancer continues to evolve and adapt during the pandemic. Depending on a location’s COVID-19 infection rates, the need to prioritize certain breast cancer patients may differ. As made evident throughout the pandemic, the ability of physicians to adjust and provide their patients with the best possible care, while simultaneously protecting a patient’s health and safety, is paramount.
Oncologists should consider the need for immediate treatment and protecting their patients from potential infection. This judgment has become a balancing act between treating patients and reducing their exposure to the virus, coupled with preserving resources for others. We have yet to see litigation arise out of the decision to evaluate a patient via telehealth resulting in a delay in diagnosis of recurrence but the statute of limitations applicable to such a claim has yet to expire.
Careful Records Are Key
If and when these potential claims are raised, maintaining strong, detailed records is critical to a successful defense. This documentation should include, and is not limited to, discussions with the patient about their condition and care — especially in a telehealth setting where physical examinations are absent. Moreover, discussions with a patient as to informed consent concerning surgical and nonsurgical treatment, such as oral chemotherapy treatment in a telehealth setting, must be well documented. Clearly, a physician’s care and treatment decisions involving breast cancer patients must align with the standard of care. With considerations made to COVID-19 and patient safety, any treatment decisions that limit a patient’s physical interaction with his/her physician should be thoroughly documented. A medical record rife with brief explanations of test results, any lack of follow-up treatment plans, and inaccurate interpretations of a patient’s condition may complicate a physician’s defense.
As we continue to live in a COVID-19 world, maintaining thorough documentation of the treatment options provided and implemented to breast cancer patients will enhance a physician’s defense and may serve to persuade a jury through refutation of any negligence claims. Moreover, thorough records may dissuade a plaintiff’s attorney from bringing the claim in the first place.
Partner Daniel L. Freidlin and Associate Michael A. DeRosa are attorneys at Martin Clearwater & Bell LLP where they focus their practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.