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COVID-19 has impacted the lives of people across the world, both from a health and economic standpoint. Frontline medical workers have risked their own lives to treat those infected. Along the way, they have saved many lives — but that doesn’t mean medical malpractice doesn’t occur, even in the middle of a crisis such as a pandemic.
Medical malpractice is a complicated area, as there are many types of medical malpractice that can occur even during normal times. When you throw in a pandemic, it can lead to a sharp rise in medical malpractice cases. However, there are new laws that can impact medical malpractice claims that are important to understand.
Medical facilities and physicians that treat patients are required to give them something called duty of reasonable care. This means that they treat patients in a way that another reasonable professional would and that the patient is not injured from the care received.
There are a number of ways that medical malpractice can occur. During the COVID-19 pandemic, a few medical malpractice claims that are anticipated to arise include:
The duty of care that healthcare providers owe their patients includes taking necessary steps to develop a plan for a pandemic as well as train staff how to implement it. Guidelines and minimum requirements are set by the Centers for Disease Control and Prevention to help limit exposure to the virus, as well as other standards of care.
Failure to do things such as properly wash hands or practice proper social distancing can be seen as a failure to abide by the emergency preparedness plan.
There are standard acceptable steps to an infection control plan that should be followed. These include things such as dedicated equipment for COVID patients as well as designated examination rooms.
Amidst a pandemic, there can be situations under which care at an acceptable level was not provided. These can include things such as:
There are many things that must be proven in order to win a medical malpractice suit, such as breach of duty that led to harm, that are being made a bit more difficult during the pandemic due to legislation.
Here in New York, Governor Cuomo provided blanket immunity to healthcare workers on the frontlines of the pandemic as cases were spiking. However, there are other laws in effect that make it even more challenging. These include:
The Coronavirus Aid, Relief, and Economic Security Act that provided things such as emergency funds to households, also provides immunity to some frontline medical workers, specifically those who are volunteering their time to aid in the crisis.
Under the CARES Act, these volunteers are protected and cannot be held liable for care they gave to patients related to COVID.
The Public Readiness and Emergency Preparedness Act provides immunity to qualified healthcare professionals who provide care during the pandemic. In general terms, this act defines the care provided to include things such as treating patients with FDA-approved devices and drugs and extends to manufacturers of devices used during the pandemic, such as N95 face masks.
Medical malpractice suits are as challenging as ever, so it’s vital to know what you’re up against if you want your case to be successful.
