COVID-19 PPE Shortages: Who is Liable?

    To date, COVID-19 has killed over 71,000 Americans and infected over 1.2 million across the country. One of the biggest hurdles caused by the coronavirus pandemic has been shortages of COVID-19 personal protective equipment (PPE). These shortages have been especially dire for essential workers on the frontline.

    The country’s contagion coupled with inadequate protective equipment has naturally presented potential areas for legal action. Lawsuits have already been filed against hospitals and other facilities for their lack of testing and PPE, but they are just the beginning in determining liability for these life-threatening shortages.

    PPE Supply & Demand

    In early March, the U.S. Department of Health and Human Services (HHS) reported that the U.S. had only about 1% of the respirator masks needed to supply medical providers should COVID-19 become a full-blown pandemic within the U.S. This, of course, is exactly what happened.

    Further issues in the PPE supply chain were revealed as COVID-19 took hold in the country. The majority of America’s PPE is not manufactured domestically. In fact, about 50% of all respirators and masks in the world are made in China. Beyond the obvious blocks to imports from China, factories themselves were also unable to continue regular operations as workers fell ill with COVID-19.

    As PPE supplies became more critical in the U.S. price gouging and supply hoarding hampered distribution efforts. In light of shortages and sky-high prices, many essential businesses and workers resorted to grassroots efforts to source necessary PPE. Other essential businesses—warehouses, retail, grocery stores, restaurants—have also sought PPE, with tremendous difficulty. Across the board, essential workers have been forced to use homemade solutions or reuse PPE far beyond it’s recommended lifespan. Especially in hospital settings, medical providers should be swapping their PPE in between patients. In reality, healthcare workers have reported being limited to a single N95 mask to reuse shift after shift.

    Government Role in PPE Shortages

    Though global supply chain clogs cannot assign liability, the shortage of PPE demonstrates the country’s multipronged failure in pandemic preparation. In March, the Federal Emergency Management Agency (FEMA) indicated it could not fulfill all the PPE needs on the state level, essentially leaving state governments to bolster their own supplies. This uncertainty pushed states into ongoing PPE bidding wars over PPE, driving up prices even more. In response to the ongoing PPE bidding wars, seven northeastern states—New York, New Jersey, Connecticut, Rhode Island, Pennsylvania, Delaware, and Massachusetts—banded together to develop a regional supply chain for testing kits, PPE, and other medical equipment.

    On April 3, President Trump issued a memorandum directing the Department of Homeland Security (DHS), FEMA, and HHS to use the Defense Production Act to keep scarce medical resources—including PPE—within the United States for domestic use. The PPE equipment included N95 respirators, surgical masks, and gloves. Despite government intervention to secure PPE however, there is still a cry for help on the frontlines at the local level. In a recent survey of healthcare workers, the majority of the 7,000 respondents indicated they were already completely out of necessary PPE or had just one week’s supply left.

    Previous viral outbreaks—SARS, ebola, H1N1—demonstrated precisely how the government was underprepared to handle a pandemic response. Despite facing three viral outbreaks in the span of two decades, years passed without the country taking any steps towards building a national stockpile of PPE. A 2019 simulation conducted by the HHS charted the devastation caused by a hypothetical respiratory illness with origins in China—it only moved up production of flu vaccines.

    Attempts to Hold Medical Facilities Liable for PPE Shortages

    The New York State Nurses Association filed three PPE lawsuits against the state Health Department, Montefiore Medical Center, and the Westchester County hospital system alleging the defendant institutions endangered the lives of its member nurses by failing to provide necessary protective gear, such as N95 masks, face shields, gowns, and gloves. So far, 954 nurses have tested positive within New York state, with the estimate that more than 4,600 will likely test positive if adequate testing were available. The union also sought a restraining order in an effort to strong arm the hospital into providing adequate PPE.

    Although the number of infected nurses is staggering, courts are shying away from mediating these disputes. In early May, a federal judge dismissed the pending case filed against the Montefiore Medical Center. U.S. District Judge Jesse Furman deemed the court to be lacking the “subject-matter jurisdiction” to take action on the requested preliminary injunction. Judge Furman urged the parties to find a resolution amongst themselves, rather than resort to the time and expense of court or arbitration proceedings. Although the court acknowledged the “undoubtedly staggering” challenges faced by the medical community, this dispute did not present a viable lawsuit. Whether other medical facilities will be found liable for failure to provide testing and PPE down the line is yet to be determined.

    Vocal criticism for how hospitals have handled PPE distribution to their staff has been heard across the country. In Muskegon, MI, a nurse was fired 10 days after speaking to the media on how the hospital was unfairly restricting the usage of N95 masks for nursing staff. Justin Howe’s—now former—employer, Mercy Health claims the firing was in response to HIPAA violations. Howe was given little detail into his alleged privacy error and says his termination was direct retaliation for voicing concern for the hospital’s lacking PPE protocols.

    Establishing Workplace Liability for PPE Shortages

    Under federal law, all workplaces in the United States are required to provide a safe work environment for employees. What constitutes “safe” under these unprecedented pandemic circumstances is an open question. For those seeking legal action in connection to lack of PPE, new legislation in some states will make it more difficult for hospitals and individual providers to be sued.

    For example, in New York the Emergency or Disaster Treatment Protection Act (EDTPA), grants immunity to healthcare providers and facilities for COVID-19-related lawsuits. The act does not, however, extend to any actions that constitute “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.”

    To establish a provider’s liability, plaintiffs will need to prove that the provider’s actions were more than merely negligent, rather, that they were excessively below the requisite standard of care. Nurses and other healthcare workers will need to prove that a hospital’s failure to provide adequate PPE was direct causation of a dangerous, and grossly negligent work environment. What constitutes “gross negligence”, “recklessness”, or “intentional misconduct” in the COVID-19 era, however, is still an open question. Because these times are so unprecedented, such determinations will depend upon how a reasonable medical provider would act under the circumstances, and how the defendant deviated from those reasonable actions.

    Expert Witnesses for COVID-19 PPE Litigation

    In any COVID-19 lawsuit alleging misconduct for failure to provide PPE, a medical expert is necessary to establish the standard of care required from medical providers in these unprecedented circumstances. This could include a physician, nurse, or emergency medical expert. A medical expert may also opine on whether a nationwide shortage may not lead to a viable claim of misconduct for certain cases.

    A hospital administration expert may also offer crucial insights into how national supply and demand issues impacted hospitals buying power to obtain the necessary equipment. They may also opine on the administrative regulations surrounding equipment distribution within a hospital organization.

    An infectious disease expert will also be critical to consult on the risks presented to healthcare workers as they were forced to continue treating patients without protective gear or the ability to be tested.

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