By Thomas Prislipsky

On April 22, 2020, Ohio Governor Mike DeWine announced the Ohio Department of Health will begin to ease the temporary restrictions on elective and non-essential surgeries. The original restrictive order, which had gone into place March 18, 2020, had cancelled elective and non-essential procedures with the intent to conserve personal protective equipment (PPE) and open bed space needed for COVID-19 patients. Now, Governor DeWine is directing healthcare providers to begin reassessing procedures which had been postponed.

Though the earlier elective surgery order has not been entirely revoked, Governor DeWine noted that current measures to combat infection rates have been successful and stated “[w]e must now begin the gradual, multi-phased process of reopening, and my first concern is the patients who have had procedures and surgeries delayed.”

Under the April 22, 2020 order, healthcare professionals are directed to review any procedures or surgeries which have been postponed due to COVID-19 and make joint decisions with their patients in deciding whether to proceed. “Resuming elective surgeries and procedures will take clinical judgment, and we will rely on our healthcare providers to make responsible decisions as we move forward,” Governor DeWine said. “Patients must have the information necessary to make informed decisions and must pay greater attention to the effectiveness of non-surgical options.” Governor DeWine also emphasized special attention ought to be paid to new or other chronic conditions which could significantly impact a patient’s quality of life.

The Ohio Department of Health defines non-essential surgeries as procedures which can be delayed without undue risk to the current or future health of a patient. It named the following as useful criteria in determining whether a procedure is non-essential:

  1. Threat to the patient’s life if surgery or procedure is not performed;
  2. Threat of permanent dysfunction of an extremity or organ system;
  3. Risk of metastasis or progression of staging; or
  4. Risk of rapidly worsening to severe symptoms.

Healthcare professionals are expected to review with their patients any possible risks of contracting COVID-19 which might arise from these procedures, as well as additional risks present in post-operative recovery. Comprehensive documentation of these detailed conversations, as well as the alternatives, is recommended to reduce and manage potential liability claims. Documentation should reflect the conversations and include the following:

  • Explanations of non-operative treatment options;
  • Risks of the surgical procedure and risks of delaying the surgical procedure;
  • Risks of COVID-19 during the perioperative period;
  • Risks of COVID-19 during the post-operative period and the impact it may have on recovery.

Having an actual informed consent form signed by the patient should be considered. If you have any questions about this alert, please contact a member of Reminger's Health Care Law Practice Group.

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