Can I File a Medical Malpractice Lawsuit for Treatment Related to COVID-19?

Posted on June 9, 2020

Across the country, emergency department health care providers have been working around the clock, often putting their own health and safety on the line to help meet the enormous medical needs of the COVID-19 pandemic. In addition to the overwhelming toll that the Coronavirus is having on the health care system, we may expect to see a surge in medical malpractice claims in the wake of the crisis. It is likely that the majority of COVID-19-related claims will be filed by patients who believe that the hospital or the health care provider failed to diagnose their condition or did not meet the standard to care.

However, COVID-19-related medical malpractice lawsuits may be particularly challenging to win for several reasons, including the more flexible definition of standard of care and the overwhelming amount of public support that health care providers continue to receive. Patients who wish to pursue a medical malpractice lawsuit are urged to contact an experienced medical malpractice lawyer.

Standard of Care

Under normal circumstances, standard of care is defined as the level of care that a health care professional with similar training and experience would provide under similar circumstances in the same community. However, these are hardly normal circumstances. Hospitals all over the country continue to struggle with a shortage of resources, such as personal protective equipment, life-saving ventilators, and front-line health care providers in areas that are particularly hard-hit.

In addition, health care providers and hospitals cannot be held responsible for the lack of testing kits that currently exist. As a result, it is likely that the standard of care will be much more flexible. For example, health care providers who delay surgeries to treat COVID-19 patients will be judged according to the current circumstances, including the fact that federal and state governments have issued emergency orders restricting non-urgent procedures.

A certain degree of flexibility surrounding the standard of care does not mean that doctors, nurses, and other health care professionals will get a free pass. Blatant errors, including preventable misdiagnoses, prescription errors, or an obvious failure to properly treat a patient, are grounds for a medical malpractice lawsuit. However, a doctor who delays a non-emergent knee surgery to treat another patient who has COVID-19 is not breaching the standard of care under the current circumstances.

Immunity Issues

In hard-hit areas, such as New York City, all licensed health care providers who work to support the state’s COVID-19 efforts are being granted temporary immunity. This includes retired health care providers and out-of-state doctors and nurses. A bill was also recently introduced to Congress that would protect health care providers who are treating COVID-19 patients for the duration of the pandemic. These protections can make COVID-related medical malpractice lawsuits more difficult to win. A skilled and experienced medical malpractice lawyer can review the details of your case and recommend the best legal course of action.

Public Opinion

Throughout the pandemic, the public support for health care providers has been overwhelming. Although there is no way of knowing how long that sentiment is going to last, there is no reason to believe that it will diminish any time soon. As a result, patients who wish to pursue a COVID-19-related medical malpractice lawsuit against a health care provider may have a difficult time finding a lawyer who is willing to take their case. If they can obtain legal representation, it is unlikely that a jury will be sympathetic to their case. However, in cases in which the health care provider is clearly negligent, an experienced medical malpractice lawyer can ensure that the patient’s legal rights are protected, and that they receive the financial compensation they deserve.

How Can I Prove Liability in a COVID-19-Related Medical Malpractice Case?

Proving negligence in a COVID-19-related medical malpractice case can be complicated for the reasons discussed above. However, the following factors can expose health care professionals to legal liability:

Allocation of Resources: Too often, life-saving resources for critically ill COVID-19 patients have been scarce. The appropriate allocation of resources is critical to treating patients and preventing the spread of infection. Health care professionals often use objective scoring systems to make decisions about resource allocation. The Department of Surgery at the University of Chicago Medicine and Biological Sciences developed the Medically Necessary, Time-Sensitive Procedure (MeNTS). The scoring system identifies 21 factors that are organized into three categories that help facilitate the triage process. Factors include the following:

  • Procedural Factors: These include the estimated length of stay, estimated blood loss, surgical team size, probability of postoperative ICU care, probability of intubation, and surgical site.
  • Disease Factors: These include effectiveness of nonoperative treatment options, exposure risk of the nonoperative treatment options, impact of a two-week delay in the disease outcome, impact of a two-week delay on surgical difficulty, impact of a six-week delay in the disease outcome, impact of a six-week delay in surgical difficulty.
  • Patient Factors: These include lung disease; obstructive sleep apnea; cardiovascular disease; diabetes; immunocompromised status; flu symptoms, such as fever, cough, sore throat, body aches, and diarrhea; and exposure to a known COVID-19-positive person in the past 14 days.

If a health care provider did not document every triage decision using an objective scoring system, a COVID-19 patient may be able to prove liability in connection with treatment. 

Informed Consent: As elective surgeries start to resume during the pandemic, health care providers must have informed consent discussions with patients, where they provide the information needed to make an informed decision about whether to proceed with an elective procedure or wait until the pandemic has passed. Topics may include the following:

  • The risk of contracting COVID-19 during or after the procedure
  • The risk of proceeding with the surgery as opposed to delaying it
  • Understanding that the procedure will be cancelled if the patient is exposed to COVID-19 or develops symptoms
  • Safeguards to minimize infection, including social distancing, cleaning, PPEs, and COVID-19 testing procedures
  • The possibility that the necessary resources may not be available if it is discovered during treatment that the patient has COVID-19
  • Guidelines for visitors
  • Advance directives
  • Post-discharge follow-up recommendations during the pandemic

If a health care provider did not have an informed consent discussion with the patient prior to an elective procedure and the patient becomes injured, the health care provider may be considered negligent.

Documentation: Health care providers are responsible for making sure that a patient’s chart includes detailed information about the patient’s medical history, list of medications, treatment recommendations, and other relevant information. If important information is missing from this chart, or the information is inaccurate, resulting in a patient becoming injured, the health care provider may be held liable for the injuries. When documenting patient care during COVID-19, providers should consider the following:

  • Source of the patient information
  • Late-entry charting
  • Limitations on treatment
  • Differential diagnosis
  • Treatment plan
  • Patient education
  • Non-patient protection
  • Next steps

Licensing: In addition to states relaxing licensing requirements so that providers from other states can care for patients during the pandemic, the Center for Medicare and Medicaid Services (CMS) has temporarily waived regulations to allow physicians whose licenses have expired to practice medicine. CMS is also allowing new physicians to practice medicine before a full medical staff review has taken place. Hospitals and providers must obtain the appropriate background information for each physician and ensure that they meet the requirements before granting privileges. Physicians are responsible for clarifying their new role, and the scope of their responsibilities, including any limitations to their privileges. The relaxed licensing requirements related to COVID-19 do not eliminate the risk of a lawsuit if the health care provider was negligent.

Only time will tell how many patients will file COVID-19-realted medical malpractice claims and how the legal system will respond. The current climate is very pro-health care provider, which means that jurors and judges are likely to be more sympathetic to the nurses, doctors, and other health care providers that have been working around the clock, often with limited resources, to treat patients. However, if a health care professional is blatantly negligent, jeopardizing a patient’s health and safety, it is well within the patient’s rights to pursue a medical malpractice lawsuit. A skilled and experienced medical malpractice lawyer will address all questions and concerns and recommend the best legal course of action.

Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Advocate for Victims of Medical Negligence

If you or a loved one was injured or your health was compromised in some way while being treated for COVID-19, it is in your best interest to contact the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton at your earliest convenience. We fully understand the unique set of challenges that COVID-19-related cases present. However, if your health care provider was negligent, we will work tirelessly to protect your rights and secure the maximum financial compensation you deserve. We will not stop fighting for you until justice has been served. To schedule a free consultation, call us today at 800-547-4LAW (4529) or contact us online.

Our offices are conveniently located in Baltimore, Columbia, Glen Burnie and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood and Elkridge.