By Jonathan Gomberg and Donna Hammaker

Law360 (April 15, 2020, 4:48 PM EDT) --

Jonathan Gomberg

Donna Hammaker

As the COVID-19 pandemic strains — and in some places, overwhelms — our country's health care system, medical practitioners are concerned that they may face unreasonable lawsuits in the future. There has been a push to alter malpractice laws to accommodate for these extraordinary times.

Malpractice firms have pushed back, stating that existing law is sufficient. A few law firms are already advertising, looking for clients who have been wronged by the U.S. health care system in this time of crisis.

From a physician's and lawyer's standpoint, there appear to be two major issues that impact the concept of malpractice during this pandemic crisis. First, the focus of a malpractice suit is how an individual patient was treated. Care necessitated by or given to another patient is irrelevant. Second, the quality of care provided is compared to what is considered to be the community standard of care.

In normal times, these tenets align with the usual goals and practice of medicine. We are not in those times; we are facing a global health calamity. Whether intentional or not, the current situation demands that the health care system also focus on the well-being and safety of the community. While each individual patient will be treated as well as possible, it is unreasonable to think that the COVID-19 virus will have no effect on individual patients' care.

The retrospective determination of what lies within the community standard of care can be a significant question in a lawsuit. Did the family practitioner consult a specialist? Did the specialist provide the most up-to-date treatment? Was that treatment available, or should it have been given to that particular patient?

Some of these questions are answered by the fact that the jury deciding the case is local to where the purported malpractice occurred; the community standard is defined by 12 members of that local community. There is an understanding that community standards can change, mostly improving over time. The retrospective analysis involved in a lawsuit should account for this.

These are not normal times. The COVID-19 pandemic is a time of fear, danger and loss. We are facing unprecedented medical and legal challenges. Fundamental questions about who we are as physicians and lawyers, how we should act to protect human life and dignity, and how we continue to promote the common good are now front and center.

COVID-19 has undoubtedly changed the standard of care — not by changing any medical practitioner's intent, but by its brute-force impact on the entire U.S. health care system. These effects play out in several interconnecting ways:

• Degradation of available services: This can be due to limited supplies or loss of staff causing the loss of capabilities, such as the ability to perform diagnostic and therapeutic procedures or surgeries. Consider a procedural lab's staff being quarantined. That lab's capability will become temporarily unavailable.

• Planned and de facto rationing of care: The press is full of questions regarding who should or should not be placed on a ventilator, should that decision need to be made. There are a multitude of smaller decisions that will also be affected by shortages. Medication shortages will be obvious. Less obvious rationing, such as hospital admissions and available support services will, by necessity, also occur.

• Patients now pose a danger to other patients, health care workers and by extension the health care system: This possibility alters medical care dramatically.

• Policies and procedures have been changed to limit potential infections: One example is earlier intubation and ventilator support for patients having difficulty breathing. In part, this is due to the increased infectious risk caused by high-flow oxygen creating respiratory aerosols, and the increased risk posed to the staff performing urgent rather than elective intubation. A less dramatic example is the rapid adoption of telemedicine, which protects both health care workers and patients.

• Changes in how medical care is practiced: Team rounding as a group is now discouraged. Physicians consulting other physicians no longer speak face to face. Physicians' physical contact with a patient is now limited. Patients are being seen on screens, rather than in person. While impossible to quantify, the lack of interpersonal communications will be a loss.

• The loss of expertise and serendipity: Consulting physicians often interview and examine a patient directly; gathering data can be as important as analyzing data, and skills vary. There can be serendipitous findings: A heart murmur that a surgeon didn't hear, or a previously undetected mass or skin lesion. Such findings will be lost in the current COVID-19 environment. Again, this loss will be impossible to quantify.

• The loss of personal interaction: The physician/patient relationship has traditionally been forged through personal contact. Again, skills vary, but loss of this contact may impact current and future care in subtle ways.

• Practicing in a state of chaos: The volume of patients and the severity of illness has stretched, and at times exceeded, the capabilities of the U.S. health care system and practitioners. Resources are short. Colleagues fall ill. Physicians and nurses fill unfamiliar roles. What may be possible at one hospital may be impossible at the hospital across the street. There is a firehose of medical information to absorb. Until the situation normalizes, the considered, orderly practice of medicine will not be possible.

It needs to be clearly stated: The changes described above cannot be considered to represent worse care. That characterization would imply a poorer quality of care in the same environment. The COVID-19 pandemic has changed our world. The U.S. health care system and practitioners are adapting as well as possible.

The public sentiment is understanding and supportive of the health care system and its practitioners. Their heroic efforts are applauded daily. This high regard may persist, akin to the long-lasting respect afforded to first responders since the 9/11 tragedy.

However, no lawyer has ever based their practice on suing firemen. Advertisements for lawyers seeking clients harmed by physicians in the current pandemic have already appeared.

Health care practitioners will, in the vast majority of cases, do what they have always done: their very best to care for their patients as well as they possibly can. Unfortunately, they have cause to be concerned that they will be held accountable in the future for providing care that may appear to have been limited, based on standards not at all representative of the current reality.

This is an unwelcome distraction now, and could become an unjust burden in the future. A legislative solution should be considered, as quickly as possible. The same practitioners who need equipment for personal protection now, also need legal protection for the future.

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Jonathan Gomberg is a physician and an associate clinical professor at the University of Pennsylvania's Perelman School of Medicine.

Donna K. Hammaker is an attorney and an adjunct professor at St. Joseph's University.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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