By Y. Peter Kang

Law360 (April 6, 2020, 8:36 PM EDT) -- Pursuing medical malpractice suits connected to COVID-19 or surgeries delayed by the pandemic will be particularly challenging due to uncertainty regarding the applicable standard of care, potential immunity protections and public sentiment overwhelmingly supporting health care providers, attorneys warn.

The Centers for Medicare & Medicaid Services issued recommendations March 18 advising health care providers to delay all elective surgeries as well as non-essential medical, surgical and dental procedures until further notice. While the guidelines will undoubtedly result in lawsuits blaming the surgery delays for a patient's injuries, many attorneys expressed doubt over whether such suits would be successful.

Additionally, a number of states, including New York — the epicenter of the outbreak in the U.S. — have relaxed regulations for out-of-state physicians in an effort to get more doctors on the front lines. Meanwhile, the federal government has granted limited immunity for volunteer health care professionals, and Congress has proposed additional legislation that would broaden such protections.

Standard of Care

Given the shortage of resources, including personal protective equipment, life-saving ventilators and front-line health care providers in the hardest-hit areas, the bar to prove negligence in COVID-19 cases may be higher than in others, according to Jeffrey R. Davis, a Miami-based plaintiffs personal injury attorney.

"I think the standard of care is going to be flexible," he said. "The standard of care on a battlefield is different than the standard of care in an emergency ward and is different from a routine examination."

Davis said health care providers who delay surgeries or treat COVID-19 patients will be judged according to the prevailing circumstances, including the fact that the federal government and state governments like Florida's have issued emergency orders restricting non-emergency procedures.

"I don't think doctors get a free pass on everything or anything they do, but these delayed procedures that would have normally been required under normal circumstances are going to be acceptably delayed," he said.

Stephen G. Reuter, a medical malpractice plaintiffs attorney with Lashly & Baer PC in St. Louis, said it could be hard to pin liability on the treating physician because many hospitals have implemented their own protocols regarding delaying non-essential surgeries.

"Part of the reason that you're delaying those kinds of procedures is because of the risk of infection," he said. "It's not so much the physicians who are deciding to postpone these procedures but rather the hospital system. … In a lot of ways, a physician's hands are tied in terms of what they'd like to do and what they can do under these circumstances."

Another issue stemming from the standard of care is whether a plaintiff's attorney will be able to get an expert witness physician — who has likely experienced the effects of the pandemic firsthand — to testify that a fellow doctor breached the standard of care and caused a patient's injury.

"You have a podiatrist who renders first aid in an emergency department and inadvertently does something inappropriate," posed Davis. "I don't think there's a doctor in the world that can testify that that was below the standard of care under those circumstances. When you deputize people in an emergency and enlist people in an emergency, I think they get a pass, and I think that's what's going to happen." 

Stuart Johnson, a DanaherLagnese PC medical malpractice defense attorney in Connecticut, expressed similar doubts.

"I wouldn't be surprised if plaintiffs have some difficulty locating experts willing to criticize their peers for actions they took or did not take during the COVID-19 crisis," he said.

Immunity

In New York, the state hit by the most coronavirus cases in the nation so far, Gov. Andrew Cuomo on March 23 issued an executive order granting temporary immunity to all licensed health care providers working in support of the state's COVID-19 efforts, including retired and out-of-state health care professionals.

Such immunity would be broadened nationwide if a recent proposal in Congress gains approval. On March 30, Sen. Ben Sasse, R-Neb., introduced a bill that would shield health care providers providing treatment outside of their specialties to COVID-19 patients for the duration of the national health emergency.

This uncertainty over future legislation remains yet another hurdle for potential medical malpractice claimants, according to Michael Madden, a medical liability shareholder with Bennett Bigelow & Leedom PS in Seattle.

"[Attorneys] must take into account what Congress is likely to do down the road. Will they do something like the vaccine immunity law? You would think that's a possibility," he said, referring to the National Childhood Vaccine Injury Act of 1986.

The law, which immunizes vaccine manufacturers, established the National Vaccine Injury Compensation Program, a no-fault system adjudicated by the U.S. Court of Federal Claims.

Public Opinion

Another roadblock standing in the way of a coronavirus-related suit is the fact that public sentiment at the moment is strongly favorable toward health care workers who are putting their lives at risk to save patients, according to Richard Carroll, founding partner of medical malpractice defense firm Carroll Kelly Trotter & Franzen in Long Beach, California.

"That's like suing the fire department on 9/11," he said. "These people are busting their butts and putting their lives on the line — there's no money in suing them, no good comes out of that. Plaintiffs lawyers usually look for ways to help people, and this doesn't qualify in that category, in my opinion."

Davis, the Miami-based personal injury attorney, said just as filing a suit against a first responder in the post-9/11 days was seen as a non-starter, it would be "foolhardy" to sue a health care provider in the near future over coronavirus-related treatment.

"I'm surprised that lawyers are advertising for COVID-19 cases — it's insane to me," he said, noting online ads he had seen touting legal services for coronavirus suits.

Johnson of DanaherLagnese, however, said it remains to be seen how long such feelings will last for the general public.

"I think public sentiment will, for a period of time, understandably favor defendants in medical malpractice cases," he said. "But the public's attention span is short, so how long the effect lasts is anyone's guess."

But Davis said the overall number of medical malpractice suits could actually decrease given the current doctor-friendly climate.

"The public sentiment is such that there is no way you will find a jury sympathetic to your cause, regardless of the facts, because those persons right now are invaluable heroes," he said. "I actually think there will be many lawyers, myself included, who will defer cases against ER doctors and other front-line medical providers because juries will be extraordinarily sympathetic to them for years."

--Editing by Philip Shea and Kelly Duncan.

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