Life has been undoubtedly upended by the Coronavirus in New Jersey and across the world. A mere six weeks ago, people had plans: vacations, earnings forecasts, family reunions, milestone birthday parties, weddings—and surgeries. But now, in the interests of saving precious resources and preventing the spread of the virus, elective surgeries are on the back burner. The logical question that follows is: what is considered an elective surgery? Believe it or not, some cancer surgeries meet the criteria as dictated by public health officials and leaders in the medical community. Is your cancer surgery elective? If your doctor diagnosed aggressive breast cancer but delayed your surgery, causing you severe anguish about your survival chances, is this considered medical malpractice? Can you sue them if your cancer advances? Today’s climate has fundamentally altered our lives and our laws in so many ways, raising questions that just a few months ago would have been unimaginable. Let’s delve into what is happening with regard to elective surgeries, guidance on delaying these procedures, and the unique issues highlighted by these unprecedented times.
Delaying Elective Surgeries during Coronavirus in NJ
What are elective surgeries? According to Governor Phil Murphy, scheduled surgeries are elective, and suspended. To that end, the governor’s Executive Order 109 prevents adults from having non-critical medical and dental surgeries or procedures in light of the healthcare system overload from COVID-19 patients at hospitals and other healthcare facilities. Because of the shortage of medical personnel, supplies, and protective gear like masks, gloves and gowns, these are reserved for those on the front lines fighting the virus, first responders and medical workers. Government leaders, the Centers for Disease Control and Prevention (CDC), the Surgeon General, and other governing agencies on Medicare and Medicaid have likewise called for planned surgery delays.
The government mandate leaves the determination of urgency or non-urgency to each patient’s doctor or dentist, weighing the dangers of delayed treatment against the patient’s or health care workers’ potential for contracting coronavirus, and efforts to avoid the spread of this disease. Unusual times come with unusual burdens, and this is one of them. How does a physician delay cancer treatment without the risk of prolonged suffering for the patient, worsening of their condition, or even death, which under normal circumstances, may be malpractice? Although doctors are used to triaging patients hierarchically from urgent to non-urgent, especially in the emergency room, Coronavirus related conditions create the added pressure of how to manage the backlog when surgeries are again allowed, while rationing surgery now.
Many cancer doctors are looking to their professional and specialty guidelines to assess the risk of delaying cancer surgery. The American College of Surgeons (ACS) outlines assessment criteria for triaging surgery patients, knowing that the surge in COVID patients will require resources and space. The ACS recommends that physicians assess resources, staff availability, and urgency to prioritize surgical procedures, like cancer, neurosurgery, ophthalmology, urology, orthopedic, vascular, gynecology, general emergency and gastroenterology. Patient maintenance through non-surgical interventions is recommended for those who can safely wait. The ACS clarified elective surgeries as planned surgeries but soon revised the parameters to include all surgeries, provided that the patient would not die within days.
How Does Delayed Surgery Affect Patients?
Much depends upon how long the surgery is delayed and which kind of procedure is scheduled; for instance, a knee replacement, tummy tuck, or cancer biopsy. Elective does not mean unnecessary, but only “non-urgent.” Urgency is measured on a scale, weighing which procedures can wait and for how long, based on whether the patient’s condition is newly developing, urgent or non-essential, and whether they can wait 30 days maximum for urgent procedures. Some patients live uncomfortably or in pain while their procedure, whether fixing a broken bone, continuing chemotherapy, or repairing a faulty hip replacement, is suspended for weeks. For the liver transplant patient racing against the clock to find an available liver finally found, the delay means losing the liver—and probably their life. In the meantime, they may be prescribed pain medication to cope for who knows how long? No one. Still, doctors must weigh the risk of contracting the virus and dedicating their resources and efforts in a non-virus direction, especially for post-surgery or chemo patients who are more susceptible to infection, against the risk of delay.
And while treatment centers can take all possible precautions to safeguard patients from exposure, surgeries may be delayed further still if patients test positive for COVID-19 before surgery. Patients themselves are hesitating to see doctors, despite symptoms that might indicate cancer, fearing that they may contract the virus at the doctors’ office or hospital. Those patients worry doctors more than those whose surgeries can wait because when they finally do see a doctor, their disease may be too far advanced to be helped.
But even for those who have a diagnosed condition, doctors cannot fully assure patients awaiting orthopedic, pediatric, or non-emergency cancer surgery, or even those with serious chronic illness, that waiting will not affect the prognosis of their condition. Communicating the advantages and disadvantages to the patient is the best the doctor can do, even if not reassuring. At least the patient is then informed of their short and long-term plans for treatment. Of course, patients always have the option to seek a second opinion.
With so much riding on the outcome, more than ever physicians are making life and death decisions using their knowledge and expertise to diagnose and treat. The delay factor imposes on medical professionals the added burden of ensuring not only their diagnosis is correct, but that their prognosis is doubly correct. Who can wait? And with so many atypical medical practices, like drive-through vaccinations, among other departures from safe medicine, doctors have requested and been granted immunity from malpractice liability during this state of emergency. Despite the legal immunity for healthcare providers in New Jersey amidst the Coronavirus outbreak, not every situation is covered by this clause. Exceptions apply in cases of gross negligence, which must be examined and determined on a case-by-case basis.
Injured due to Delayed Surgery in NJ, What can I do?
Ultimately, medical malpractice law measures a physician’s choices and related conduct that may have caused patient harm, against what a physician would have reasonably done under the circumstances. Unreasonable, unadvisable, or improper conduct given the situation is considered negligence, and patients who prove they suffered damages due to medical negligence may be compensated by law. Our seasoned medical malpractice attorneys remain abreast of the complex and emerging COVID-19 legal consequences of the rapidly changing and high stakes atmosphere in New Jersey. If you have questions about delayed treatment or surgery for a medical condition, contact us at 973-435-4551 to discuss your unique case and the legal avenues that may be available to you.
- COVID-19: Guidance for Triage of Non-Emergent Surgical Procedures, American College of Surgeons
- Coronavirus Surgery Cancellations Leave Thousands in Pain over Delays, USA Today