Hospitals are overcrowded, providers are overworked, and critical equipment—from ventilators to protective masks—is scarce. Recently, many states have passed legislation or enacted executive orders granting COVID-19 healthcare providers immunity from civil liability for any injuries resulting from their actions taken in response to the coronavirus pandemic. Within many of these orders, liability protections also extend to the administrative side of healthcare.
As legal immunities crop up to protect all sides of the healthcare system, the windows of liability for mounting malpractice claims are swiftly closing. The public health crisis has presented unbelievable extenuating circumstances for medical providers and, as such, bringing litigation against the healthcare industry will be especially tricky. Here, we examine the protections already enacted and how litigators are finding legal footing.
Legal Protections for the Healthcare Industry
In response to the COVID-19 pandemic, all 50 states have issued emergency declarations. Currently, 34 states offer some form of healthcare provider protections for care during an emergency period. Twenty-three of these states’ protections were enacted specifically to address the current crisis—Alabama, Arizona, Arkansas, Connecticut, Georgia, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, and Wisconsin.
Though no two states have taken uniform actions, the protections do contain common core terms. Throughout the newly enacted immunities is language explaining that these protections are in place through the end of the emergency period for that state—they’re not meant to be permanent. The protective measures also pertain to “good faith” care during the pandemic, meaning “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm,” are not covered. Given the range of state protections, litigators face an uphill battle in determining what constitutes “gross negligence” and pursuing tenable claims on behalf of their clients.
Additional protections are also in the works at the federal level. As Congress debates the terms of additional pandemic aid legislation, many Republican lawmakers are pushing for healthcare protections on the federal level. Texas senator, John Cornyn, recently stated from the Senate floor, “We simply cannot allow a flood of frivolous lawsuits to harm our incredible health care workers or stunt our economic recovery.” Additional national legal immunities would pose further obstacles to any potential lawsuits against healthcare providers.
Trouble Nailing Down “Gross Negligence”
In the medical malpractice context, “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 among these new hospital practices and state-sanctioned immunities, many litigators are left wondering what does viable medical liability look like in the coronavirus era?
During the COVID-19 pandemic, medical providers and administrators have been responsible for implementing new health and safety protocols—such as the process of triaging contagious patients, setting up testing procedures, creating separate areas for those who tested positive, obtaining ventilators, and implementing proper PPE usage. Typically, in order to establish civil liability, an injured party must prove that the defendant acted beyond the requisite standard of care and that this breach of their duty was the proximate cause of the plaintiff’s injuries.
In the pandemic era, a plaintiff would need to prove that the provider or administrator acted in a way that deviated from the emergency period standard of care and can reliably qualify as gross negligence, willful or reckless conduct, or intentional misconduct. In the context of the COVID-19 pandemic, this means identifying overt and intentionally negligent action that is not a result of protected conditions, such as equipment shortages or overcrowded facilities.
One example of this could be a doctor prescribing a drug that is not officially designated as a COVID-19 treatment. Attorney John Hochfelder, founder of NewYorkInjuryBlog.com, suggests that gross negligence is reserved for only extreme cases, such as “the doctor came in drunk…something really, really outrageous.” Hochfelder further explains that more typical instances of medical malpractice or negligence during the pandemic are essentially, “nonstarters.”
Silenced Critics & Legal Backlash
Thus far, healthcare litigation stemming from the current public health crisis has been largely internal. In April, the New York State Nurses Association filed complaints against the NY Department of Health (DOH) and two area hospitals alleging that nursing staff was put at risk due to inadequate PPE. The DOH suit was dismissed in late May per Judge Frank Nervo’s ruling that the court could not, “substitute its judgment for that of an administrative agency, such as the respondent DOH.” One of the complaints against a local hospital— Montefiore Medical Center— was also dismissed earlier in May. Similarly, the court ruled that the matter was out of its jurisdiction and should be handled through arbitration. The third complaint, against Westchester Medical Center, is still pending.
In Washington state, an emergency room doctor lost his shifts after publicly criticizing his hospital’s handling of the pandemic. In late May, Dr. Ming Lin filed a complaint against St Joseph Medical Center alleging wrongful termination, breach of contract, and defamation. Dr. Lin’s case isn’t unique either. A trend has emerged amongst medical professionals facing retaliatory terminations after voicing concerns against their employers. As early as March, a nurse in Illinois filed a wrongful termination suit against her hospital after losing her job as a result of warning about mask safety.
Patient-led litigation against healthcare facilities and providers have yet to emerge, but that is not to suggest it is not coming. As Jennifer Siegel, a senior associate at King & Spalding, suggests, “If you’re someone who gets injured or someone who loses a family member and you feel like the physician really did a poor job, people will sue, regardless…Whether the attorneys elect to take a case is a different story.”
Approaching Healthcare Liability: How Experts Can Help
A successful case against a hospital or provider in the age of COVID-19 will not be an easy, nor common, feat. But for certain extreme or blatantly negligent cases, attorneys may choose to push forward with litigation. In these instances, with traditional hallmarks of medical malpractice by the wayside, litigators must find alternative, creative approaches. Attorneys at Baker Donelson suggested some states have employed certain ambiguities in describing liability protections. For example, Massachusetts offers immunity to treatment provided “in accordance with otherwise applicable law.” In Kentucky, providers are guaranteed protections only if they have acted, “as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances.” In these instances, the protections themselves leave room for a creative litigator to prod at the scope of legal immunity.
Attorneys should also carefully select highly qualified experts to consult on establishing areas of possible negligence for healthcare professionals. Experts in the fields of infectious diseases and epidemiology will be crucial to address the healthcare industry’s response to the pandemic and operational handling within hospitals and other medical facilities. This includes the proper implementation of new and evolving medical protocols and guidance for PPE and medical supplies.
Medical professional experts on both the treatment and administrative sides must also be consulted to assess whether conduct rose to the level of gross negligence, recklessness, or intentional misconduct for which a defendant could be held liable. Even amid pandemic operations, the requisite standard of care must be determined before it can be established that an individual or organization fell below said standard.
Specifically, on the hospital administration front, an expert in this field could opine on an administration’s pandemic preparedness. This includes probing into whether there was an emergency safety plan or if staff had been trained in infection control and recognizing COVID-19 symptoms. The right experts can help refine case theory establishing where medical actions crossed into negligence.
The legal industry continues to navigate unprecedented events, but with enormous potential for future litigation. As for the viability of any working legal action against a physician or hospital, the outcome remains unknown for the foreseeable future until any pending litigation makes its way to the courts.