Deaths from the coronavirus in the United States have reached 159,000, and more than 4.85 million Americans have been infected. The end of this crisis, unfortunately, is nowhere is sight. The COVID-19 pandemic has put a severe strain on our healthcare system. Communities short on medical staff put out calls for help, and doctors and nurses have responded from all across the country.
But what does this mean for the standard of care for patients suffering from the disease or other ailments, and how does the pandemic impact patients’ claims for damages in medical malpractice actions?
One logistical change in medical malpractice litigation is the fact that courts are conducting more business via teleconference. Some courts have closed or reduced their intake of new cases. This may mean a plaintiff in a medical malpractice case—whether it’s related to the pandemic or not—will experience a delay in his or her ability to go to trial. While most cases settle prior to trial, cases frequently have one or more hearings in court or conferences in judges’ chambers. These in-person events, including depositions, may take more time to arrange, even with teleconference technology.
In addition, financial hardships, job loss, and inadequate unemployment benefits due to the pandemic have resulted in some plaintiffs settling his or her lawsuit more quickly in an attempt to obtain funds to keep afloat.
The pandemic has caused many plaintiffs to want compensation more quickly. And they may be willing to settle for less money rather than wait for a larger jury award or negotiated settlement.
States such as Arizona, California, Illinois, Louisiana, Massachusetts, Missouri, and even Michigan are calling on health care professionals who can volunteer their expertise.
Here in Michigan, the MiVolunteerRegistry, the Michigan Division of Emergency Preparedness & Response, and other organizations are asking doctors from around the country to volunteer to supplement the state’s current hospital capacity temporarily as Michigan hospitals attempt to address a potential surge of COVID-19 patients.
Also, many areas are accepting retired physicians and medical students to help fight the pandemic. This means that some doctors and medical students are being asked to practice beyond their medical expertise. In some instances, they may lack the necessary training. Mistakes will be made. Inexperience could result in medical negligence.
While it’s critical that those in Michigan who have contracted COVID-19 receive medical care, we should be sure that they receive quality medical care. When examining a medical malpractice claim, the “medical standard of care” is usually defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice. If a Grand Rapids-area patient is treated by a pediatrician volunteering from Albuquerque, New Mexico, how will the standard of care be determined? Undoubtedly, New Mexico’s rules and licensing of physicians is not precisely the same as those of Michigan. This may create an issue as to how a medical malpractice case is considered in Michigan courts. The question of sub-standard treatment that constitutes medical malpractice will become much more difficult to answer.
We hear “COVID-19” and “coronavirus” all the time, but we rarely hear the full, official name for this virus, which is “2019 Novel Coronavirus.” The key here is the word novel, which means a new coronavirus that has not been previously identified. The CDC says that the virus causing the coronavirus disease 2019 “is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold.” This means that scientists and doctors don’t have all the answers and continue to learn more every day about the disease and how to fight it. Because of this fact, doctors are using some degree of trial and error. There are no true treatment standards that healthcare workers can use to help patients recover because, again, it’s a new virus.
Plaintiffs will need to examine their treatment carefully with their attorney to determine if they can file a medical malpractice lawsuit because of physician’s disregard for a COVID-19 patient’s health and well-being.
Some states have enacted legislation or are considering rules that grant healthcare professionals who treat COVID-19 patients immunity from medical malpractice claims. New York and New Jersey have granted full immunity to healthcare providers treating patients suffering from COVID-19. In addition, Massachusetts, Illinois, and Connecticut have also provided legal immunity guidelines.
In Michigan, Senate Bill 899, “Immunity from Liability for Health Care Provided During a State of Emergency,” was amended and approved recently by the Michigan House of Representatives Judiciary Committee. SB 899 would amend section 11 of Michigan’s Emergency Management Act to shield health care workers from liability during a state of emergency.
While there is a compelling reason to provide immunity to healthcare workers in the pandemic, the other side of the coin is that if a doctor or nurse knows he or she won’t sued for medical malpractice, there’s a chance the physician won’t take every precaution and use the utmost of care in treating these patients.
This complete immunity runs the risk of decreasing the standard of care for Michigan patients.