Liability Immunity for Healthcare Providers Against Medical Malpractice Claims During the Coronavirus Pandemic
In March 2020, hospitals in New York became overwhelmed with COVID-19 patients. Intensive care units (ICUs) were at capacity, hospital beds lined the hallways, and equipment shortages forced doctors to make difficult decisions over resource allocation. Outside, refrigerated trucks held bodies that could not be fit into hospital morgues. [1] Other states would soon experience a similar plight. Since then, millions of Americans have contracted COVID-19, with about 144.1 per every one hundred thousand people known to be infected requiring hospitalization. [2]
The COVID-19 pandemic has exposed jarring shortcomings in America’s healthcare system. Between the shortage of resources and exhausted health practitioners, all aspects of healthcare, even ones not directly related to COVID-19, have been impacted. Though the legal repercussions of one of the “largest medical disasters in [U.S.] history” have yet to fully unravel, over four thousand medical malpractice complaints are reported to have already been filed against physicians as of August 12. [3] These unprecedented times present a uniquely heightened risk of medical malpractice claims against healthcare professionals. [4] As such, many physicians, attorneys, and officials, including U.S. Secretary of Human and Health Services Alex Azar, are rightly urging states to establish measures to provide liability immunity for healthcare providers against medical malpractice claims. [5]
In the United States, medical malpractice falls under the jurisdiction of state governments and occurs when a healthcare professional or hospital causes injury to a patient by either inaction or an act of negligence. [6] The plaintiff has the burden to prove three prongs: the defendant’s actions violated the standard of care, there was injury to the complainant as a result of this violation, and said injury resulted in damages to be recovered through the litigation. [7] The plaintiff in a medical malpractice case must show that a healthcare professional has not met an established standard of care. The standard of care is established based on the acceptable practices of any reasonable healthcare provider in a similar circumstance, and it is used to determine whether there has been a case of malpractice. [8] The novel circumstances of the COVID-19 pandemic vastly complicate this process. As previous court rulings suggest, current medical malpractice standards are generally inapplicable to new malpractice claims, especially those that may arise in such unprecedented times.
Small v. Howard (1800) was a Massachusetts Supreme Court case in which the plaintiff, a surgical patient who had suffered a severe wound on his wrist, sued a general practitioner for negligence in caring for and postoperatively dressing the wound. [9] The Court held that if the defendant did not have the physical resources or educational background to care for the plaintiff, he should have temporarily dressed the wound and directed the patient to an expert. [10] This emphasizes the practitioner’s obligation to use all reasonable knowledge and resources, or if they do not have direct access, to disclose that to the patient and direct them to available external resources.
Amid a pandemic where many resources have become limited or unavailable, it is unfair to hold a healthcare professional to the “normal” standard of care, given that doctors have had to resort to unconventional practices like converting anesthesia machines into ventilators. [11] Moreover, it is unreasonable to expect medical professionals to consistently perform at their normal abilities when under immense physical and emotional exhaustion. A shortage of healthcare workers across hospitals also makes it nearly impossible to direct patients to certain medical specialists and facilities available in normal times.This shortage suggests that professionals facing non-COVID related claims of medical malpractice, which have emerged partly as a result of the limited resources and other extraneous circumstances caused by the pandemic, should not be expected to meet the same high standard of care as they normally are. Amid the ongoing pandemic, however, some states such as Louisiana and Virginia have made this unfair expectation explicit by extending only limited liability to all healthcare providers.
A 1990 ruling of the Mississippi Supreme Court further specifies where and when certain standards should be applied. In Palmer v. Biloxi Regional Medical Center, Inc., the plaintiff’s daughter was severely injured in an automobile accident and placed in the ICU, where her neurological condition stabilized. However, she passed away due to cardiopulmonary arrest a few days after a successful surgical procedure on her lower jaw. In their suit, her parents alleged that the negligence of medical professionals at the Biloxi Regional Medical Center (BRMC) had resulted in the death of their daughter. [12] On appeal, the Mississippi Supreme Court upheld the dismissal of the plaintiff’s charge partly because the plaintiff’s expert witness, being from outside the general area of BRMC, was not adequately familiar with the facilities and resources available at BRMC to testify in opposition to the defendant. [13] Thus, the plaintiff did not have a qualified expert in the field through which to establish a standard of care and show how BRMC violated that.
This ruling illustrates the importance of defining the standard of care in medical malpractice claims based on what has been established in the field or is already known by other medical experts. Citing Hall v. Hilbun (1985) of the Mississippi Supreme Court, the Court in Palmer ruled that in order for a proffered expert to help establish a standard of care, they must be “familiarized with the facilities, resources, services, and options available” to the defendant. [14] In addition, the ruling suggests that proffered experts should become familiar with the facilities available to the defendant prior to the trial through visitation of the facility or other means, such as listening to other witnesses describe the facilities or having interacted with regional physicians for years. The importance of a testifying expert’s familiarity with the resources available is an underlying assumption echoed in many other state Supreme Court cases. However, meeting this standard is impracticable in malpractice claims that arise amid COVID-19 due to the rapidly changing environment and dearth of medical resources. As Michael Grossbard, the chief of hematology at New York University’s Langone Hospital explains, the “practice of medicine has changed more in one week than in [his] previous 28 years combined.” [15] Additionally, as hospitals return to normalcy and possible medical malpractice trials are held, the facilities, resources, services, and options available will have changed since the outbreak’s peak. This means that there is no viable way to establish a standard of care with proper expert testimony as outlined in court rulings.
The federal government and some state governments have already taken certain measures to establish a greater level of liability immunity for healthcare professionals working with COVID-19 patients. However, fewer measures have been taken to limit civil liability for sued professionals whose ability to adhere to the normal standard of care has been indirectly impacted by COVID-19. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law in March 2020 grants federal liability protections to healthcare professionals who provide volunteer medical services relating to COVID-19 cases, excluding cases of blatant negligence, criminal misconduct, and intoxication while working. [16] New York Governor Andrew Cuomo issued an executive order granting civil liability immunity for injuries and deaths caused by any professional providing care in support of the COVID-19 response, with the exception of gross negligence. [17] Twenty-three states have similar executive orders establishing some level of liability immunity for healthcare professionals. [18]
It is impossible to establish a precedent—whether local or national—for how a reasonable healthcare provider should act under similar circumstances when the circumstance we are faced with is unprecedented. However, given the immense pressure that healthcare professionals are currently facing, along with the risk of increasing financial pressure on an already-strained healthcare system, all states must develop measures to ensure liability immunity for healthcare professionals whose practices have been both directly and indirectly impacted by COVID-19.
[1] CNN, 'A war zone': Inside a hospital that is overwhelmed with COVID-19 patients and deaths, WHDH: 7 News Boston (2020), online at https://whdh.com/news/a-war-zone-inside-a-hospital-that-is-overwhelmed-with-covid-19-patients-and-deaths/. (visited July 19, 2020)
[2] U.S. Department of Health and Human Services, COVIDView: A Weekly Surveillance Summary of U.S. COVID-19 Activity, Centers for Disease and Control Prevention, online at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html. (visited August 16, 2020)
[3] COVID-19 Complaint Tracker, Hunton Andrews Kurth LLP (2020), online at https://www.huntonak.com/en/covid-19-tracker.html. (visited August 1, 2020)
[4] Malpractice Risks During COVID-19: 'Really Enormous' for ED Providers, Relias
Media (2020), online at https://www.reliasmedia.com/articles/146072-malpractice-risks-during-covid-19-really-enormous-for-ed-providers. (visited July 20, 2020)
[5] Alex Azar to States, 2020, Lifting Restrictions to Extend the Capacity of the Health Care Workforce during the COVID-19 National Emergency,
https://www.ncsbn.org/HHS_Guidence_to_States_on_Regulations_on_Healthcare_Workers.pdf.
[6] B. Sonny Bal, "An Introduction to Medical Malpractice in the United States."Clinical Orthopaedics and Related Research 467, no. 2 (November 26, 2008): 339-47. https://doi.org/10.1007/s11999-008-0636-2.
[7] What Is Medical Malpractice? American Board of Professional Liability Attorneys (2020), online at https://www.abpla.org/what-is-malpractice. (visited July 20, 2020)
[8] id
[9] Palmer v. Biloxi Regional Medical Center, Inc., No. 564 So. 2d 1346 (Miss.1990).
[10] Small v. Howard, No. 128 Mass. 131, 131 (Mass. 1880).
[11] CNN, 'A war zone': Inside a hospital that is overwhelmed with COVID-19 patients and deaths, WHDH: 7 News Boston (2020), online at https://whdh.com/news/a-war-zone-inside-a-hospital-that-is-overwhelmed-with-covid-19-patients-and-deaths/. (visited July 19, 2020)
[12] Palmer v. Biloxi Regional Medical Center, Inc., No. 564 So. 2d 1346 (Miss.1990).
[13] id
[14] id at 875
[15] Lisa Rosenbaum, "The Untold Toll — the Pandemic's Effects on Patients without Covid-19," New England Journal of Medicine (2020), online at https://www.nejm.org/doi/full/10.1056/NEJMms2009984.
[16] Liability Protections for Health Care Professionals during COVID-19, American Medical Association (2020), online at https://www.ama-assn.org/practice-management/sustainability/ liability-protections-health-care-professionals-during-covid-19. (visited July 20, 2020)
[17] Andrew Cuomo, Exec. Order No. 202.10, 39 C.F.R. (2020), online at https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. (visited July 20, 2020)
[18] Laura Lorek, "How Effective Are Liability Waivers in the Age of the Novel Coronavirus?" ABA Journal (2020), online at https://www.abajournal.com/web/article/understanding-liability-waivers-in-the-age-of-covid-19. (visited July 20, 2020)