COVID 19 Medical Malpractice Challenges
Physicians, medical professionals, and hospital administrations are facing unprecedented times in the age of the COVID-19 pandemic. From overcrowded hospitals, to overworked doctors, to rationing and scarcity of ventilators, COVID-19 presents unique medical challenges. Despite the proliferation of vaccinations, there are still hundreds and thousands of new COVID cases each week across the United States (as of March 26, 2021, 410,192 new cases, to be exact). As COVID-19 becomes the “new normal” in medical and hospital settings, novel legal issues concerning malpractice and liability have arisen. In the beginning of the pandemic, many states passed legislation which granted healthcare providers immunity from civil liability for any injuries arising from their treatment of patients during the pandemic. What exactly this means, in terms of wider implications on medical malpractice suits, remains to be seen.
Liability Protections During COVID-19
The majority of states have either passed, or have pending, legislation that protects healthcare providers from liability related to COVID-19. For example, last March, as part of its budget for the Fiscal Year 2021, New York codified the Emergency or Disaster Treatment Protection Act, which grants civil and criminal immunity to healthcare providers but for actions that constitute “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” Specifically, the immunity applies if the treatment was 1) in accordance with applicable law or other COVID-19 emergency rules; 2) in response to or as a result of COVID-19 and in support of the state’s directives; 3) and done in good faith. The bill was subsequently amended in August 2020, narrowing the scope of liability protections to treatment directly related to a known or suspected case of COVID-19.
A majority of states followed suit, passing similar legislation. In April 2020, Massachusetts passed a bill which protects a broad range of healthcare providers from civil liability for any damages sustained during the course of providing treatment during the period of the COVID-19 emergency, with conduct constituting gross negligence and other higher forms of culpability excluded. New Jersey’s bill extends immunity to any damages related to the allocution of ventilators or other scarce medical resources. Indiana’s civil tort immunity bill, prohibits class action suits.
Pennsylvania has temporarily suspended a number of regulatory requirements through Executive Order, which will remain in effect for the duration of the emergency. The Order permits medical doctors to practice in more than two affiliated facilities, thereby widening their scope of practice, and it also allows out-of-state practitioners to practice telemedicine in the state. Connecticut previously mandated similar immunity provisions, through an Executive Order which expired on March 1, 2021, with the same provisions currently pending in a bill before the state’s senate.
Establishing the Standard of Care
From a medical liability perspective, physicians should remember that these laws do not prevent lawsuits from being filed, but rather, creates a degree of liability protection that varies state to state. Like any issue of liability, whether a physician is found to be responsible for damages will be decided by a jury, and typically, will be determined by evaluating whether a certain standard of care was met. By providing liability exceptions to cases involving gross negligence, recklessness, and/or willful misconduct, these new laws and executive orders essentially shift the requisite standard of care in medical malpractice cases to include ordinary acts of negligence.
Typically, in medical malpractice, “any act or omission by a physician during the treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury” is considered a breach of the standard of care. But cases based on ordinary theories of negligence, i.e., a physician failed to act reasonably, are the types of cases that the new legislation protects. COVID-19 medical malpractice claims will turn on the question of whether a physician acted grossly negligent, recklessly, or intentionally in causing harm – all questions that are specific to a state’s own definitions of these terms. The immunity protections mean that a plaintiff suing a physician for medical malpractice would have a higher burden in proving liability.
The Future of COVID-19 Medical Malpractice Claims
With such an exponential increase in sickness, hospitalization, and death this past year, it has been accepted doctrine, especially among insurance providers, that COVID-19 will result in a massive uptick of medical malpractice claims. As of last April, advertising for medical malpractice cases were on the rise, along with lawsuit filings. Immunity protections limits a physician’s liability; it does not prevent the filing of the lawsuit itself. Physicians will still have to go through the stages of litigation, motion practice, and potential settlement discussion, not to mention the harried trial process, before reaching a jury who will decide the ultimate issue of liability.
Immunity provisions are not indefinite– malpractice claims may rapidly increase upon their expiration. Many executive orders, such as those issued by the states of Arizona and Connecticut, for example, have a scheduled end date, unless further rescinded or extended. Some bills also create a time period by which a cause of action must occur in order to be included in these protections. In Florida’s pending legislation, for example, all actions must occur between March 11, 2020 and before December 31, 2022 to be covered by the state’s immunity provisions. Other state laws will expire upon the termination of its state’s declaration of emergency. Lastly, some states, such as Delaware and Maine, do not have any COVID-specific immunity laws at all. Therefore, physician immunity provisions may only stave off medical malpractice claims for so long. Upon expiration of executive orders or the automatic repeal of legislation once a state’s emergency is considered to have ended, it is highly likely medical malpractice claims will sharply increase in the context of COVID-19.
The Necessity of Medical Experts in COVID-19 Medical Malpractice Claims
COVID-19 is a novel virus – the medical world’s knowledge and standard for diagnosis and treatment as still evolving. What constitutes gross negligence or reckless or intentional misconduct in the COVID-19 context is yet to be determined by the courts. Plaintiffs bringing forth such a suit (and any physician defending against one), will need medical experts in fields such as infectious diseases and public health, among others, to answer questions pertaining to a physician’s training, safety plan, and protocols for diagnosing and treating COVID-19. Additionally, medical experts will assist in differentiating between conduct considered permissible in emergency circumstances, and conduct that is more egregious and legally actionable.
