WASHINGTON (CN) — Under normal circumstances, with malpractice suits and doctors’ Hippocratic oaths in mind, hospitals take great lengths to prevent patient infection.
During a pandemic, where contagious people crowd spaces shared with the uninfected or the healthy, concern over liability is heightened.
But even as extra precautions are taken, the paradox remains twofold: the crisis mode of the moment ups the ante for potential negligence and the increased contact ups the ante for additional liability.
When it comes to infectious disease, those who would file suit also face a causation hurdle.
“If you are alleging infection, that can be tough because where did the virus come from? Was it left on a counter or doorknob? Did a nurse sneeze? You have to actually prove it came from hospital failure instead of maybe, shaking your boss’ hand a day before you walked into a hospital,” Dr. Michael Wilson, a physician and lawyer based in Washington, D.C., said in an interview.
The question is also about a lapse in the standard of reasonable care.
Dr. Bruce Fagel, who practiced emergency medicine for a decade before becoming a medical-malpractice lawyer in California, said in a recent interview that, as with beauty, making the determination of reasonable or unreasonable care in a claim is largely in the eye of the beholder.
“It’s going to be very difficult to have valid claims against ER physicians, especially given the way things are happening right now,” Fagel said. “If the patient comes into the emergency room and has an urgent condition other than coronavirus, because the whole health care system has been upended, well, the standard of care has changed for them, too.”
States like New York addressed this new dynamic by activating legislation like the Emergency Disaster Treatment Protection Act and including it in its 2021 budget.
It protects licensed hospitals, nursing homes and similar facilities from most civil and criminal liability claims, while also shielding attending nurses, aides, EMTs, physicians, administrators and other staff. The protections began March 7 when Governor Andrew Cuomo declared a state emergency, and they will not end until the declaration is terminated.
Similar protections have been extended in multiple states including Illinois, New Jersey, Michigan, Arizona, Connecticut, Kansas, Mississippi, Georgia, Arkansas and elsewhere through executive order.
With this patchwork, one might be tempted to turn to sweeping federal legislation as a means to streamline the liability protection process.
But that could be a hard sell, Fagel said, noting old chestnuts in the medical malpractice arena that have moldered in Washington like California’s $250,000 cap on “noneconomic” malpractice damages, which has remained largely unchanged for 45 years despite lobbying.
“There’s no way to have a blanket catch-all, certainly not from Washington,” Fagel said.
Plus, states’ needs and resources are different in a pandemic so liability can shift. In California, he noted, emergency rooms have not been as overwhelmed of late, so a doctor in Bakersfield might not be experiencing the same resource shortage or circumstances ripe for malpractice like a doctor up to his eyeballs with patients in Brooklyn.
At least one lawmaker thinks federal intervention is worth a shot: Nebraska’s Republican Senator Ben Sasse.
In early April, Sasse introduced the Facilitating Innovation to Fight Coronavirus Act, a bill that would protect doctors during the crisis who practice beyond their specialty plus those who are forced to use modified medical devices to treat Covid-19 patients. The liability protections also extend to practitioners working outside of normal facilities, like a field hospital in Central Park.
Expecting malpractice lawsuits to grow as the pandemic continues, the American Tort Reform Association published a white paper this month with its concerns and recommendations for states as policy and Covid-19 litigation intersect.
