One of the most important issues facing the medical community is desperately ill patients overwhelming the nation’s medical capacity to care for them. We are hearing about this every day in the news. In the context of a medical malpractice case, has Coronavirus altered the legal elements that are applied to medical providers? Yes and no is the answer.
Here is a hypothetical scenario. Let’s say a doctor who has contracted Coronavirus performs emergency surgery and the patient ultimately contracts coronavirus. Is the doctor liable for negligence? If the doctor knew he or she had coronavirus and did not take reasonable steps to protect the patient, then the answer would be yes.
The elements of proving such a case have not changed, even in our present circumstances.
Coronavirus and the Medical Malpractice Elements of Duty, Standard of Care, Causation, Damages
Duty, the standard of care, causation, and damages are the four elements needed to prove any negligence case, including medical malpractice.
- Duty: The defendant owes a legal duty to the plaintiff under the circumstances. That means the defendant (in this scenario, the doctor) owes an obligation to his/her patient. The defendant breached that legal duty by acting or failing to act in a certain way;
- Standard of Care: This means that the doctor must proceed in a reasonably prudent manner compared to any doctor in similar circumstances. These are the “rules of the road.” Once the standard of care is breached, the defendant is negligent;
- Causation: Nevertheless, the defendant’s actions (or inactions) must actually cause the plaintiff’s injury; and
- Damages: The plaintiff was harmed or injured as a result of the defendant’s actions. For all intents and purposes, the harm must be serious in a Pennsylvania medical malpractice case.
Coronavirus Does not the Concept of Liability for Medical Malpractice
The concepts of liability have not been fundamentally altered by the pandemic. In the above scenario, if the doctor had no choice but to perform the surgery, where otherwise the patient would die, then the standard of care would mean the doctor would have to perform the surgery. So too if the patient actually contracts the virus from the doctor, but recovers, the damages would be minimal and therefore it would not be financially feasible to pursue such a malpractice case.
Coronavirus Does Change the Healthcare Delivery and Standard of Care
The delivery of healthcare has been dramatically altered by the virus. So too, the standard of care has been changed as applied to medical practitioners. In the hospital setting, surgeons are certainly performing life-saving surgeries, with extensive protective equipment and other means to protect themselves, their co-workers, their patients, and the community. Hospital organizations prepare for events like this and did before the onset of COVID-19, (though perhaps not for an outbreak to the extent we are currently experiencing).
How do Will Insurance Companies respond to Changes Brought About by Coronavirus?
It is likely that insurance companies will be flexible going forward with medical providers in the area of telehealth appointments. Patients will need to communicate with their doctors and medical malpractice insurance companies want to encourage that. Moreover, Health and Human Services Secretary Alex Azar issued a declaration on March 12, 2020, providing liability immunity to healthcare providers, suppliers, drug manufacturers and other entities “caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures” against the Coronavirus. Liability immunity for doctors and hospitals means it will be harder to proceed with a medical malpractice claim arising from the pandemic.
If you think you experienced medical malpractice during the Coronavirus pandemic, Give us a call at (610)834-6030 & contact and we’ll investigate your claim.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.