Corporate Formalities and COVID-19
As the novel coronavirus (COVID-19) continues to spread across the U.S., businesses, including hospitals and healthcare systems, are convening their boards of directors and committees to make decisions about protections for employees, customers and patients. These decisions are frequently documented in corporate and committee minutes, which may be subject to discovery in a lawsuit, or scrutinized as part of a governmental investigation or accreditation survey.
Often organizations include too much information in their meeting minutes. Some organizations even go so far as to include every comment made at the meeting. As an example, assume a hospital committee is making a decision as to whether to limit visitors at the hospital during the COVID-19 crisis. During that meeting, one very vocal committee member who is adamant about restricting visitors makes a number of comments about the risks to patients and staff, as well as the potential resulting need to shut down hospital operations if visitors are not restricted. Each of these comments are recorded in the minutes. Notwithstanding the comments of the one committee member, the committee ultimately votes to not limit visitors at this time.
Shortly after the decision was made, the vocal committee member’s concerns materialized; a visitor did infect patients, patients died, the staff was infected, and due to the high number of incidents, certain hospital operations were shut down. As part of the ensuing lawsuits and investigations the minutes were reviewed. Based on the minutes, many questions were asked, including whether the committee members exercised appropriate fiduciary duty and whether the hospital (through its committee) was negligent.
Proper minute taking could have helped to mitigate this risk.
Who, what, when, where and why should be the basis for all meeting minutes. Who was in attendance (including absences to ensure quorum requirements); what was the purpose of the meeting (a special meeting, annual meeting, etc.); where did the meeting take place; why is something being discussed (the next order of business was…); and back again to what was discussed and/or decided.
Boards and committees should engage in active discussions and debates in order to exercise their fiduciary duties, but the details of those discussions are not the final action of the board or committee. In fact, including verbatim discussions in the minutes can actually stifle, rather than encourage, active discussion, as board and committee members may not want to be quoted verbatim in the minutes. A better approach is to use the minutes to demonstrate that a robust discussion occurred, that the board was thoroughly engaged, that the committee relied on experts, if applicable, to record the contents of the motion taken and to provide evidence that the motion was duly made, seconded and passed.
Using the above example, the committee minutes with respect to limiting patient visitors may read: “The next order of business was a discussion regarding limiting patient visitors at the hospitals. Dr. Smith, an infectious disease specialist, presented to the committee a summary of the potential risks associated with allowing patient visitors. The committee members had the opportunity to ask Dr. Smith questions regarding the risks. Following a lengthy discussion, the following motion was duly made, seconded, and passed by a majority vote of the committee members: ‘Resolved, that the Hospital’s current patient visitation policy will remain unchanged at this time and that the committee will revisit this issue at each committee meeting through ________________ (date certain).’”
While observing corporate formalities and proper minute taking should always be a priority for businesses, the risks associated with improper minutes are heightened during this pandemic.