According to Law.com, New York, New Jersey, and Michigan have passed laws shielding medical workers, doctors, and nurses from lawsuits. Federal legislation has also been proposed that would protect medical malpractice lawyers from suing doctors, hospitals, nurses, and the heroic staff who are now working around the clock to keep our country safe and healthy. National legislation regarding medical malpractice lawsuits have not been passed, so in many parts of the country, medical malpractice lawsuits can continue as they have.
During this time of pandemic and uncertainty, many states and governors are calling for a moratorium on wrongful death lawsuits, particularly lawsuits related to coronavirus treatment. The New York Times reports that experts are calling for the relaxing of certain regulations to ensure that doctors and hospitals can adjust to the changing coronavirus emergency. In a state of medical emergency, where hospitals are overwhelmed and medical professionals find themselves making hourly life-or-death decisions, it is understandable that some of the laws will be adjusted to let doctors perform their jobs. In New York, for example, medical malpractice lawsuits have been limited to lawsuits for gross negligence.
Some states have called for a revision to the state’s medical malpractice laws, giving doctors more leeway in these tough times. It is understood that in a crisis situation, doctors may need to ration care, providing heroic care to those they believe best have the chance to survive. Some states, like New York, changed the standard for medical malpractice lawsuits from negligence to gross negligence to account for the overwhelm the medical system is facing. However, for states that didn’t see the emergency levels of infection like those seen in New York, negligence laws remain as they were prior to the coronavirus pandemic, and doctors have a responsibility to provide all patients with a standard of care. However, Law.com notes that there has been hesitation on the part of some medical malpractice lawyers and families to pursue lawsuits against doctors and medical professionals who are heroically working to save lives. But ultimately, a balanced view needs to be taken because this can create a tough situation for a family who believes their loved one suffered an injury or illness as a result of medical malpractice. While many state laws have taken into account the changed reality of COVID-19, placing some restrictions on the type of medical malpractice cases that can be pursued, the laws acknowledge (even in New York) that families do still have the right to sue for medical malpractice in cases of egregious or gross negligence. And in parts of the country where laws have not been passed barring lawsuits, doctors are still required to provide proper standards of care to patients.
Ultimately, families and law firms need to take into account the full picture when considering whether a medical malpractice lawsuit is the right next step. For example, in a case where a hospital is overwhelmed with patients, where doctors may not have had the personal protective equipment they need to even the ability to protect themselves from contracting the coronavirus illness, and where medical resources are limited, the reality of the situation needs to be considered. It is likely that the law in this situation would also give the doctors more leeway to make heroic medical decisions, particularly in cases where doctors were putting their lives on the line. Doctors who are working on the “front lines” of the coronavirus pandemic will generally be granted added immunity and protection.
However, this needs to be balanced with the fact that doctors performing normal duties also have a responsibility to provide patients with a proper standard of care. During the pandemic, babies will be delivered, cancer surgeries will be performed, amputations will happen. If a baby is seriously injured due to a doctor’s egregious error, should a family hesitate in pursuing damages to provide for the child’s life-long care, which can be incredibly expensive over a lifetime? If a person has the wrong limb amputated due to an egregious medical mistake, should the family remain silent? And if a doctor or nurse administers a deadly overdose to a patient in need, what happens when the family faces years of nursing expenses and costs? Ultimately, the reality is that medical malpractice can still happen, even in pandemic times, and this needs to be balanced with protections for doctors who are doing the hard and valuable work on the front lines.
Medical malpractice lawsuits related to coronavirus deaths might largely remain off-limits (or only pursuable in egregious negligence) in the foreseeable future, due to the fact that the disease is so new that standards of care are evolving daily. In fact, according to Law.com, standards of care could change patient to patient due to limitations on the kinds of personal protective equipment available. Common sense laws are being put on the books across the country that would protect health care workers who needed to improvise to protect themselves and their patients.
It is important to note that the standard of care might change with time and that these laws should evolve with the situation. An emergency today may be routine care tomorrow. For example, if a scientifically proven treatment is found for COVID-19, the standard of care may change accordingly to that proven treatment. If a vaccine is found, standard preventative measures currently in place might change. And, as hospitals resources increase or decrease due to infection, standards of care may need to evolve accordingly. Ultimately, it is believed that many medical malpractice lawsuits filed in relation to coronavirus treatment in a medical setting will have a tough time succeeding, due to these factors.
With many non-essential treatments and surgeries suspended, the opportunities for doctors to make errors outside of treating coronavirus cases is also reduced. As it stands, whether families have the right to pursue medical malpractice lawsuits will depend on where the malpractice took place, whether the patient was seeking treatment for coronavirus, and whether the doctor was negligent in providing care. Ultimately, the decision to pursue medical malpractice lawsuits will have to be viewed on a case by base basis. In the case, where the doctor clearly made a mistake, it may also be possible to negotiate a settlement outside of court. In cases, where an error was clearly made, doctors and hospitals may be willing to negotiate settlements. Blizzard Greenberg is a medical malpractice, wrongful death law firm in Houston, Texas that is closely watching the situation unfold. Our medical malpractice lawyers in Texas are here to hear your story and may be able to help you with your claim if you believe a loved one died due to medical malpractice.
