The current pandemic is likely to have a significant impact on medical malpractice risk. Physicians are currently seeking legislative protection that would shield them from medical malpractice suits arising from care and treatment provided during these extraordinary times. Following efforts led by the American Medical Association, the Governors in New York, New Jersey, and Michigan have already issued orders that raise the standards for injuries and deaths that occur while the pandemic is ongoing.
Raising the Bar
The current standard for filing a medical malpractice claim in New York, New Jersey, and Michigan requires a physician to engage in negligent behavior that causes a patient harm. However, due to the strain COVID-19 is placing on healthcare systems in these states, that standard has been raised from negligence to gross negligence. This requires physicians to engage in an egregious deviation from what would normally be considered standard care.
As the strain on healthcare systems in other states grows by the day, and the number of patients succumbing to COVID-19 rises, it is likely that other states will follow suit. This will make it harder for patients and surviving family members to pursue medical malpractice claims against negligent physicians.
There are already signs that other states are considering similar legislative action. Among them, Nebraska where legislators have introduced legislation that would protect physicians operating outside of their specialty, as well as physicians who use a modified medical device. The proposal would also protect physicians who provide treatment outside of a standard healthcare facility, such as a converted hotel, conference center, etc. used for the treatment of patients.
The Hazards of Improvisation
Precious little is known about coronavirus and the most effective ways to treat the associated damage it causes to the circulatory and respiratory systems. As a result, a significant amount of improvisation is occurring across the country. Physicians, nurses, and other hospital staff are using homemade personal protective equipment. Healthcare providers are securing medical supplies from a hodgepodge of suppliers; many of which have sprung up overnight to respond to this crisis.
Physicians are applying untested techniques and therapies, while health agencies supply potentially faulty tests, respirators, ventilators, and other medical supplies. To be blunt, it is a potentially deadly mix of mistakes and errors that threatens patient safety across the board. Even patients receiving routine care for heart conditions, respiratory ailments, and other common ailments are susceptible to injury or death caused by the ripples of the coronavirus throughout the healthcare system in the United States.
Delayed Care, Misdiagnosis, and Missed Diagnosis
Many healthcare systems have ordered the suspension of all non-critical treatments during this time. As a result, many patients who would have otherwise undergone testing for cancer, heart disease, lung disease, etc., have been forced to wait for a proper diagnosis of their condition. This delayed diagnosis means that many will face longer treatment regimens, and potentially fatal consequences as cancers, etc. progress.
Physicians are also under great strain right now. This means that many may misdiagnose a patient’s health issues. This can result in improper treatment that can further exacerbate the condition. There is also the potential for physicians to miss a diagnosis altogether which can have potentially lethal results.
The current requirements for establishing liability remain unchanged in most of the country. This means that in order to file a medical malpractice claim, plaintiff’s must establish that they were under the care of the defendant, that the defendant made a significant departure from an authorized standard of care, and that this breach caused harm to the patient. Further, the statute of limitations for filing medical malpractice claims and the types of damages plaintiff’s can seek remain unchanged at this time. It does not appear likely that these will change as a result of the coronavirus pandemic.
Court Considerations in the Era of Coronavirus
It remains to be seen how the courts in Illinois will respond to medical malpractice suits filed over care provided during the current pandemic. While there is potential for legislative shielding, it is likely to be limited in scope and application. Indeed, any legislative protections passed by the legislature are likely to come with a host of caveats.
What is likely to occur is that the courts will examine the standard of care that would be normally expected, before factoring in the strain on a healthcare facility or provider’s resources during this time. The courts may also look at the defendant’s particular healthcare experience and knowledge. This will be a factor in instances where a physician, nurse, or other practitioner was operating outside of their normal specialty, prior to receiving medical licensure, or in some cases, for physicians and nurses brought back in to provide care after retirement.