Arizona Emergency Declaration Impacting Medical Surgeries During the Pandemic:

By Brett W. Johnson and Tracy A. Olson

On March 19, Governor Doug Ducey issued an executive order delaying “all nonessential or elective surgeries, including elective dental surgeries, that utilize personal protective equipment or ventilators” with the purpose of conserving scarce medical resources to test for and treat COVID-19.¹ This Order is effective March 21 at 8 a.m. until further notice is given and is subject to reconsideration every two weeks.

Nonessential and elective medical or dental surgeries are defined in the Order as those that “can be delayed without undue risk to the current or future health of the patient.” The Governor’s Order further explains that “[i]n making that decision, the medical professional shall consider the health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery and the urgency of the surgery.”

Surgeries are not “elective or nonessential” if:

• “if it would threaten the patient’s life,”
• “threaten permanent dysfunction or impairment of any body part,”
• “risk metastasis or progression of staging[,]” or
• “require the patient to remain hospitalized if the surgery was delayed.”

Like most decisions made by health professionals, exercise of the provider’s best medical judgment is necessary to determine “whether a surgery is nonessential or elective.” It is important that the totality of the patient’s care be taken into consideration. For example, if a patient is at risk of becoming opioid dependent or suffering other complications if a surgery is not performed, this may weigh in favor of proceeding although only secondary to indicators warranting surgery. As such, this may require additional consults from other mental healthcare or pain management specialists in determining whether surgery is necessary.

Healthcare organizations performing or assisting in surgeries should consider forming a committee dedicated to addressing this Order and assisting providers in making the nonessential or elective determination. If a committee is formed, it should include appropriate stakeholders from the practitioner (medical staff) perspective and facility administration. However, the initial “medical judgment” determination should be done by the treating physicians, in consultation with other practitioners who may be assisting during the potential surgery.

As necessary, the healthcare organization’s committee should seek guidance from government officials or applicable licensure boards if there are questions concerning internal protocol developments. Professional associations are also good resources for guidance in developing industry specific protocols. Furthermore, the organization’s internal protocol should be designed to guide its providers in making the nonessential or elective determination and consider each factor set forth by the Order and other factors integral to sound medical decision making in light of the patient’s circumstances. Any review committee should follow the same guidance.

Once a protocol is in place, providers who are required to follow the protocols should clearly document in the patient’s medical record why (or why not) a procedure is medically necessary and that the decision was made in accordance with organization protocol. If possible, consulting practitioners or other assisting practitioners (i.e., anesthesia, infectious disease, pain management, etc.) should also document the determination as to medical judgment and, if the procedure continues, their concurrence in the determination. Separately, the organization (in consultation with legal or risk management departments) may want to maintain documentation of the peer review determination as to the concurrence with the treating physicians’ medical judgment determination.

Given the uncertain and everchanging nature of the COVID-19 pandemic, healthcare organizations must be nimble to respond to rapidly changing laws. Failure to adhere to this Order could not only subject licensed providers to investigation by their respective licensing boards, but also to other potential criminal and civil liability. However, the “standard of care” in making the medical judgment that a surgery is not necessary is also likely to be the subject of future medical malpractice actions. A clearly thought out and documented “medical judgment” determination is key to avoid potential liability.