Health care providers working in the new era of COVID-19 are risking their health, the health of their families, and suffering the trauma of watching patients succumb to the novel virus. In some areas, physicians are working with limited resources and limited personal protective equipment. Many physicians are also enduring financial hardships as the virus disrupts usual patient care. In the backdrop of this setting, some plaintiff’s attorneys have actually begun advertising to solicit COVID-19 cases. The anger these advertisements provoke is very real, but it also begs the question: should we be concerned about litigation in these circumstances?
Pandemic circumstances, by their nature, increase the incidence of adverse events. How protected will physicians be if their usual practice is disrupted, and there are subsequent delays in diagnosis or treatment? If we send a patient with suspected COVID-19 home when they are stable, but they later worsen or die due to the unpredictability of this horrible virus, do we also have to worry about being sued? What if we are forced to ration ventilators or other scarce resources? If we are asked to practice outside our usual scope -- if a gastroenterologist is now working on the medicine floors, or a general internist is now working in the ICU, will we be protected from liability?
In this podcast, Dr. Pensa speaks with two malpractice defense attorneys about some general principles, and gets some reassurance.
Some states have adopted emergency measures giving practitioners additional liability protection, changing the standard for civil cases to 'gross negligence or willful misconduct'. It is critical to understand, however, that this does not mean blanket immunity from lawsuits. It merely changes the standard by which a jury should approach determining liability, should the case get all the way to trial. Despite this new standard, lawsuits may still be filed, and will need to be defended -- and this defense is costly. It is imperative that providers make sure their insurance coverage is intact, so that this does not need to be paid out of pocket if a lawsuit is filed. Contact your carrier for proof of coverage if there is doubt, or if you are taking on a new role (telemedicine, working in a new area of the hospital, or traveling to another state to help, for example.)
In the podcast, we also discuss considerations for volunteers or providers coming out of retirement, some thoughts about documentation, and reasons why we should still be reassured overall. It is likely that fewer lawsuits will be filed, as it will be much harder for plaintiff’s attorneys to prevail in these cases. This is true even in states that have not adopted a gross negligence standard. ‘Standard of care’ is contextual, and all of us are operating in pandemic circumstances; the old standard was upended by the pandemic. Juries will be made to understand this, and very few people will forget the esteem they had for health care workers in the spring of 2020, even if trial is years away. Have a listen to the podcast, know how to protect yourself as best you can, and then get back to the important work of caring for your patients, and for yourself.