The COVID-19 pandemic is most lethal for older Americans and those who suffer from severe respiratory problems. It makes sense that nursing homes and rehabilitation facilities would impose more restrictions on guests and ensure the cleanliness of the home. Yet, outbreaks of coronavirus in nursing homes have made headlines all across the country, despite social distancing and other aggressive measures in place to prevent the spread of the virus.
What Will Happen Next?
Andrew Cuomo, the governor of New York, has already passed an executive order limiting the types of medical malpractice that can be brought against doctors and hospitals while the pandemic is in place. This legislation is likely to have corollaries in most other states while Florida contemplates barring any civil action against nursing homes.
A recent article from Slate discusses an order by Ron DeSantis, Governor of Florida, to shield nursing homes from medical malpractice during this time. But that order has yet to be signed, as the governor considers whether or not it is necessary.
What Does the Law Say on Medical Malpractice Shields?
The Equal Protection Clause laid out in the 14th Amendment stipulates that the government may never deny the equal protection of the law in their jurisdiction. The Equal Protection Clause became the basis for which medical malpractice damage caps were overturned in Florida. Now, Florida is without medical malpractice damage caps, but some legislators want to bring them back with revised language that seems to satisfy the requirements of the Equal Protection Clause.
That being said, placing a moratorium on just one segment of the population, while it is business as usual for everyone else, is a direct violation of the Equal Protection Clause. So, even if these laws are passed by governors, they may not be constitutional.
The situation is slightly different in New York, where the governor has passed an executive order to bar malpractice lawsuits related to coronavirus treatment. Of course, most hospitals right now are not taking patients for any, but the most serious of conditions. Is it possible during a state of emergency to place a moratorium on malpractice lawsuits related to a specific condition (as opposed to a specific demographic)? The law is fuzzier here, so we will have to wait and see how it plays out.
One Indiana Mayor Fights for Seniors’ Rights
One Indiana mayor has launched a program to test all nursing homes and assisted living workers on a regular basis. Why? Because 80% of coronavirus deaths involved individuals over the age of 80.
Jim Brainard, the mayor of Carmel, IN reached out to eldercare facilities, notifying them of new tests in place that can produce results minutes. This was after Brainard contacted medical experts to identify who should be getting tested on a regular basis.
On April 3, Brainard reached out to eldercare facilities to notify them about the tests and urged these facilities to test their workers before they are allowed to go to work. This is not dissimilar to what is happening around the country with grocery store employees. Grocery stores have begun taking the temperatures of employees before they are allowed to work.
While Brainard received a good deal of positive response for the directive, there were a few holdouts that Brainard characterized as “belligerent” and “defiant.” In response, Brainard arranged for the letters to be hand-delivered by police. Brainard conceded that he did not have the authority to force eldercare employees to get tested, but warned them that it constitutes “gross negligence” to avoid testing employees. He also insinuated that they could be held criminally liable for reckless homicide if any of their patients die.
The Culling of Elderly Patients
Italy announced amid the worst of the outbreak, that they would be going into triage protocol. They said that they would consider not treating patients over 80, in order to ensure the availability of resources to those who are younger people. Here in America, some hospitals are facing the same problem with a shortage of resources being a major contributing factor to the death toll. Decisions over who should get those resources need to be considered carefully.
Nonetheless, there are questions as to whether or not this decision-making process is discriminatory and therefore illegal. As an example, an older Americans looking for a job cannot be denied the job on the basis of their age. So, why does it make sense for doctors to discriminate based on age?
These are the legal challenges that we will need to face, once the quarantine and coronavirus threat are in our rearview mirror.
Need an Expert Witness? Call Cambridge Medical Experts
Cambridge Medical Experts provide our legal clients with an authoritative voice that can impact the outcome of a lawsuit. Call today to learn more about our services.
