Before we begin – attention medical students (and those who know them): Our colleagues at the Financial Residency podcast have partnered with an anonymous donor to supply ten medical students with $5,000 scholarships this Thanksgiving holiday. For details, visit their application page, linked here. Happy Thanksgiving!

And remember – Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state. 

As COVID-19 cases increase across the United States, there has been great focus on mask mandates by governmental authorities, but not much attention on how individual businesses, including medical practices, can respond.

The basic rule is simple: A private business must conform to a regulation on masking set by a governmental authority, but if there is no such regulation, or if it is weak, that business can set up its own policy. Think, Costco. That is why there are so many viral videos of store employees barring entry without a mask in areas where there is no governmental mandate.

A medical practice, though, is unique in several ways. Like other businesses, it is a place of public accommodation. But unlike other businesses, it is a place where sick people go for treatment. A medical practice is filled with those who are inherently more susceptible to a severe COVID-19 infection. Unlike other business owners, you are a fiduciary for those “customers.”

Let’s take a look at how you can manage these roles when faced with someone – a patient, a visitor or an employee – who will not wear a mask.

Let’s begin with responding to claims by the mask refuser that masking is unconstitutional.

You do not want to get into an argument on constitutional law while you have a busy office, but you can keep one essential fact in your pocket: In 1905, in Jacobson v. Massachusetts, the Supreme Court upheld a vaccination requirement (so actually an invasive effort, unlike a mask) on the basis that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good…. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

That position has not changed since and so mask mandates are not unconstitutional.

Even so, such a constitutional claim would actually not apply to you anyway, since you are not the government. The only way that you could enter into a constitutional (and likely a local civil rights statute) violation would be if your office mask requirement was discriminatory in intent.

The government may not do so, going back to a 1900 case in which the Supreme Court struck down a quarantine law against bubonic plaque that was actually driven by anti-Chinese bias. In a private business such as your office, requiring masking only of groups that are disfavored would be an equal protection violation.

Of course, you would only have a mask requirement in your office that is applied neutrally, so these issues are really outside what you need to consider.

However, you are bound by other laws.

Start with your duty to those who come to your office.

As a business owner you have a duty, certainly at common law and likely in local statutes as well, to make your premises as hazard-free as possible for visitors and invitees, and all the more so when those individuals are there for your monetary benefit. A masking requirement addresses this by making it less likely that COVID-19, an airborne virus, will infect them. If someone were able to prove that they were infected at your office ( a tall order indeed) and that you had not taken reasonable precautions, they could propel a case for negligence.

You also have a higher duty to actual patients, since you are a fiduciary for their health. You are charged with a strict duty to reduce any medical risk that they could encounter while at your office. In the setting of the pandemic, a mask requirement is no different in scope than your normal sanitation precautions, differing only in the patient or visitor being involved in carrying it out.

There are set-offs, though, that kick in precisely because you are requiring the patient’s participation. Before we dive further, a brief reminder: Medical Justice is equipped to help doctors navigate a bevy of medico-legal challenges, including counsel specific to COVID-19. Schedule your consultation by visiting our consultation page or by using the tool below. With that said, back to the piece.

The first is that you may not abandon your patient.

Abandonment in the setting of medical care refers to the practitioner unilaterally terminating the therapeutic relationship with the patient without adequate notice to the patient while continuing medical care is still needed.

The essential point therefore distils to why the patient is in your office. Someone in for a routine quarterly follow-up of their diabetes who arrives unmasked and refuses a mask that is offered without a medically valid reason to do so (more about this later) can be told that they must leave the office. A patient having their first post-operative visit or getting a chemotherapy infusion or in for consultation about the results of their Holter monitoring the previous day cannot just be sent away even if they refuse to mask because their care is ongoing and they have not had time to set up an alternative.

The second set-off is that you may not violate the Americans with Disability Act (ADA).

When you have a patient in your practice who has a medical limitation, such as severe respiratory disease, you should have an exception in your policy for them and use alternative methods such as distancing to keep them and others as safe as you can as a reasonable accommodation.

Extend this exception to those who accompany the patient. If a patient with dementia (who can mask) can only come to your office with his wife, who has COPD and cannot mask, accommodate that person, because you are otherwise barring the husband from care.

The ADA only applies to the truly disabled whose disability specifically precludes masking. It should not be confused with anti-maskers who present a card that they downloaded online that declares that they have some unspecified medical condition that prevents masking. And that you are not allowed to ask about their condition and making them mask therefore violates federal law and that they will report you to the FBI and DHS. Those garbled versions of the ADA and their hyperbolic threats have no legal basis.

You have the right to define what you accept as a mask. Non-masks with holes cut into them would be excluded, but a patient who shows up in a loose bandana should be provided with a medical mask. If they refuse to comply you can, again short of abandonment or an ADA violation, require that they leave.

Finally, you can mandate how masks are worn on your premises, specifically requiring that the nose be covered. Again, unless there is a valid reason and no other laws are violated, you can require that someone who only masks their mouth leave.

The easiest way to deal with these issues is when the appointment is made.

Having your front desk say something like, “We just want to remind you and anyone accompanying you that you will need to wear a mask that covers your nose and mouth during your appointment. If you do not have a medical mask we will give you one when you arrive. Is there any medical reason that you or anyone who will be accompanying you will not be able to do so so that you or they will require an alternative accommodation?” This screens out those with an agenda and those who do not mask properly due to misinformation before they arrive and also states your compliance with the ADA.

Of course, there is one last group, other than patients and visitors, that needs attention: your staff.

The baseline issue is that no one has to be admitted to a place of public accommodation – which is what your office is – if they present a risk to others. In the case of your employees, this goes further because they are your agents and so are integrated into your fiduciary duty to your patients.

You are also obligated under OSHA to provide a safe workplace and a non-masking employee in a medical practice undermines this.

You can therefore restrict your employees from even entering the office if they refuse to adhere to masking requirements you have set up. Employees who have a medical reason to not be able to mask can work remotely or be furloughed.

If an employee is uncooperative and is at-will, you can fire them immediately. If they have contractual notice protections, then you should inform them in writing (as proof against a wrongful termination claim) that proper protective procedures are an absolute requirement of their continued employment and then follow that up with actual termination unless there is immediate correction – there can be no “strikes” to be run through in the face of an active pandemic.

Before we close this topic, note that although the column is about masking, the points discussed also apply to social distancing and hand washing and other limitations, such as restricting the number of patients and visitors in the office or requiring patients and visitors to put their belongings in a closed bag. Your office is your castle and you can pull up the draw bridge against COVID as you deem necessary.

Medical Justice is equipped to help doctors navigate a bevy of medico-legal challenges, including counsel specific to COVID-19. Schedule your consultation by visiting our consultation page or by using the tool below.

With that said, we conclude our piece with the summary below.

In summary:

You can have a mask mandate in your office that covers patients but are still bound to not commit abandonment and should have exceptions that fulfill the ADA. You may also mandate mask wearing by employees and can enforce a failure to do so by termination. How has your practice navigated COVID-19? Let us know in the comments below.

MJ Notes: [Most physicians are on board with masking. Some are not. If state or local government regulations mandate masks, and you fail to do so, the government may impose fines and shut you down. Put a different way, the economic viability of your practice will not depend upon your opinion. The column provides a reasonable roadmap to avoid legal tussles compounding the economic challenges of the pandemic. Further, if you believe state or local government regulations are inadequate to keep your patients, staff, and you reasonably safe, you can craft your own restrictions, subject to the described caveats.]

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Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.