Can I Make a Medical Malpractice Claim Involving COVID-19?
With emergency rooms at capacity and clinics struggling to keep a full staff as caretakers are required to quarantine, the novel coronavirus had led to confusion among doctors as well as patients. We’ve been left to face changing guidelines and mixed messages from officials and healthcare experts. Americans were warned from the beginning that COVID-19 would be deadly, but with nearly 150,000 deaths as of late July, this tragedy has gotten much worse than many people expected. For those who have come down with COVID-19 or seen a loved one hospitalized, the losses are often major.
In such a situation it’s natural to wonder whether there’s anything you can do to protect your family’s wellbeing and security by preventing medical malpractice.
Hospital Infections & Negligence
Infection control is a longstanding issue in hospitals and long-term care facilities like nursing homes. Two separate government surveys of medical errors in the U.S., one in 2014 and one in 2017, identified infection as one of the top harms hospital patients faced during those years. The latter estimated 1 of every 20 hospital patients may contract an infection during their treatment. While Rhode Islanders have been more likely to avoid the ER since the start of the pandemic, some non-COVID patients are still receiving treatment in the same facilities as those suffering from the disease. Even with patients and care teams split up to avoid infection, it’s possible the virus could cross these barriers.
Typically, when a patient is infected while in the hospital, an argument can be made their care team was at fault for lax sanitization procedures. When serious damages ensue, a patient can file for damages. Is this a possibility for those who came down with COVID-19 after being treated for another health concern?
Nursing Homes Given Wide Immunity
Among the elderly, infection has always been deadly—flu and pneumonia outbreaks can lead to patient deaths in residential facilities that fail to quarantine the sick and properly use personal protective equipment (PPE) so nurses don’t spread the virus. Even in past years, when pandemics and outbreaks weren’t a wide problem, infection likely killed nearly 390,000 nursing home patients annually.
Typically, a family might have grounds to bring a lawsuit if they can prove inadequacies in their loved one’s treatment lead to a fatal infection. When it comes to the novel coronavirus, it will be much harder to bring a case. An executive order signed in mid-April protects nursing homes from legal action unless gross negligence can be proven. We, like many patient advocate groups, believe this gives a free pass to facilities that have failed to follow infection control guidelines in the past. At the time of this writing, the order extends immunity through the beginning of August 2020, but it may be extended. We are disappointed by this decision that prevents families from receiving justice and will continue to look for ways to protect the rights of patients and their families.
Non-COVID Patients Could Have Recourse
The same executive order that protects nursing homes from lawsuits applies to hospitals and other healthcare services as well. However, there may be room for patients to file a suit depending on their reasons for being in the hospital. If they:
- were being treated for a condition that was not COVID-19 and
- their treatment was not disrupted by the facility’s response to COVID-19,
they may be eligible to file a medical malpractice claim for any negligence. It’s worth noting these rules have not yet been tested in court. Our expectations and guidance may change as we see precedents set. However, if you aren’t sure whether your case would be allowed under the state’s emergency rules, reach out to our team. We are happy to help you find clarity.
Federal Protections Regarding COVID-19 Treatment
The CARES Act passed by the Federal Government did more than provide funding for individuals and widespread prevention and treatment efforts. It also provided immunity to any volunteer medical workers who came forward to help with COVID-19 care efforts. The Department of Health and Human Services (HHS) passed further rules protecting healthcare professionals who followed the HHS’ recommended methods for prevention, diagnosis, and treatment of the disease.
This rule recognizes that, when dealing with an unknown but fatal disease, there is no “standard of care” for doctors to meet. As we’ve seen, while medications are being tested against COVID-19, they may have unexpected side effects that render them a poor choice. However, in the face of such a fast-moving disease, it would be worse to hold off on using any type of treatment for fear of a lawsuit. This is a difficult balance to strike, but like all the challenges we have faced in 2020, is unfortunately necessary. It should be noted that the immunity under HHS rules does not extend to actions of willful negligence, which can and should be penalized.
Other Considerations: Proving the Source of Infection
One of the biggest barriers to coronavirus lawsuits may not be a legal one. The virus has a long incubation period: Symptoms of infection may take anywhere from 2 days to 2 weeks to appear. This makes it difficult to determine when a patient was infected, meaning it’s hard to say where they were exposed to the virus. For those who have been working from home and leaving the house as little as possible, identifying the carrier who infected you might be possible. For those who attend work every day and regularly spend time around others outside of their household, pinpointing the person who passed the virus to you may prove prohibitively difficult.
Some states have taken steps to assume any first responders who contract COVID-19 were exposed in the course of work to combat this obstacle. Whether such assumptions will be extended to other groups remains to be seen.
Call Us with Your Coronavirus Questions Today
Our experienced medical malpractice attorneys are here to help you determine your rights if you’ve suffered due to a doctor’s negligence. The novel coronavirus has put all of us in unfamiliar territory and we, like you, are still learning the causes of and limitations to action. However, if you think you have a medical malpractice case, we urge you to reach out to our team for a free case evaluation.
COVID-19 patients may incur high hospital bills, miss weeks of work, and even suffer long-term symptoms that affect their ability to return to their normal lives. These costs are large enough to threaten many families’ stability and comfort. It’s important to figure out whether you may have recourse and a chance to recover compensation. We are here to explain your rights and offer guidance in these difficult times.
Call Karns & Kerrison today at (888) 281-3100 to schedule a free consultation with our medical malpractice & hospital negligence attorneys. For your safety and ours, we are working with clients via e-mail, phone, and videoconferencing.