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Like Virus Itself, Future of Malpractice Liability Is Uncharted

Members of the anesthesia department at New York’s Mount Sinai hospital work together in March, during the Covid-19 coronavirus pandemic. (Mount Sinai Health System via AP)

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.”

Contract workers join the Army Corps of Engineers to get the dormant St. Luke’s Hospital ready for reopening on April 23, expecting a surge of coronavirus patients in Phoenix. (AP Photo/Ross D. Franklin)

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 IllinoisNew JerseyMichiganArizona, Connecticut, KansasMississippiGeorgiaArkansas 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.

People prepare places to sleep in area marked by painted boxes on the ground of a parking lot at a makeshift camp for the homeless on March 30 in Las Vegas. (AP Photo/John Locher)

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.

Tiger Joyce, the tort-reform group’s president, supports Sasse’s legislation. In an interview, Joyce said he would like to see similar language applied in the upcoming Covid-19 economic relief bill, which will be the fourth CARES Act as the packages are known.

The act includes a “Good Samaritan” protection that removes liability from health care professionals providing volunteer services to prevent, treat or diagnose patients with Covid-19 unless the harm was an act of omission, grossly negligent, reckless or flagrant.

For more than 40 days now, doctors and nurses across America have had to contend with record numbers of patients and personal protective equipment in short supply. The Journal of the American Medical Association published findings in late March — as the virus slowed down in China where it originated and picked up in Europe and the United States — that health care workers in China had increasingly returned to the breach with depression, anxiety and insomnia.

“I’m sure the hospital would say it is doing the best it can under the circumstances,” said Dr. Wilson.

Sasse’s expansion could be a balm for health care workers who fear legal repercussions as they try to do their jobs under extraordinary conditions, Joyce said.

As a guest enjoys his meal Monday at The Waffle House in Brookhaven, Ga., Tiffany gets to-go orders ready. (John Spink/Atlanta Journal-Constitution via AP)

But executive orders from state officials raise other questions.

Take Georgia Governor Brian Kemp’s executive order that limits liability for staff, employees and contractors at medical facilities during the pandemic while leaving immunity off the table for injury caused by gross negligence and willful misconduct.

“That’s the appropriate step because it is essentially conferring emergency management worker status on people treating patients,” Joyce said. “It calls for elevated standards and a willful standard, which is a fairly high bar because it suggests a level of intention as opposed to error or just a mistake.”

Joyce thinks these moves will be challenged in court, just as groups have challenged orders from Texas and other states to suspend abortions during the pandemic. In Pennsylvania, businesses unable to topple an executive order to shutter operations that are “non-life-sustaining” now seek U.S. Supreme Court relief.

Governor Thomas Wolf’s reply brief is due Monday.

Protesters stop momentarily at a McDonald’s drive-thru, as they join fast-food workers protesting for a second day outside the restaurant in the Crenshaw district of Los Angeles on April 6. (AP Photo/Damian Dovarganes, File)

“The question is whether [the lawsuits] will come in six months from now or a year from now,” Joyce said.

Nick Jurkowitz, partner of the Fenton Law Group in California, can see the argument for and against federal legislation to address liability for doctors.

“We are treating a situation medically that we may not necessarily know 100% of the right way to treat people. We could have much stronger negative consequences to the health of everyone if hospitals and health care providers are too scared to try experimental treatments, make changes or make hard ethical decisions,” Jurkowitz said. “If they’re so concerned they will be sued they might do what they need to and that could harm patient care.”

Assuredly, Jurkowitz said, it poses a conundrum.

“I think this is a really difficult situation modern law and medicine are facing,” he said.

He also suspects that if action happens at a federal level it may end up being retroactive.

“The potential for lawsuits as a result of this pandemic is great,” Jurkowitz said. “That could devastate the system in and of itself.”

Even if state governments are doing their best to keep an eye on things, the pandemic moves fast and the only constant is change.

“Courts are closed and strained right now,” Jurkowitz said. “People also might be a little sensitive to filing a lawsuit against a doctor in the middle of a pandemic. I certainly wouldn’t want to serve a health care provider right now, and I don’t think most lawyers would want to serve a doctor who is spending every night in the ER fighting a pandemic.”

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