Attorney Brian Fenters explains the malpractice liabilities doctors face when treating COVID-19 patients. The COVID-19 public health emergency has raised concerns about the potential liability faced by physicians and other healthcare professionals who are responding to the COVID-19 crisis and are being asked to practice medicine under near-unprecedented circumstances. On March 27, the President signed into law H.R. 748, the “Coronavirus Aid, Relief and Economic Security Act” (CARES Act), which included federal provisions for additional liability protections for volunteer health care professionals during the COVID-19 pandemic.
The American College of Physicians captured the spirit of the law in these words, “The CARES Act states that physicians and other health care professionals who provide volunteer medical services during the public health emergency related to COVID-19 shall not be liable for providing such services that relate to the diagnosis, prevention or treatment of COVID-19 or the assessment or care of a patient related to an actual or suspected case of COVID-19.”
Along with the federal government, many states have compacts or uniform laws that include some liability protections for doctors. While current law in some states may provide what appears to be sufficient liability protections, physicians need assurance and protection from liability for taking on new responsibilities, roles, and changes in how care is delivered due to COVID-19.
These new responsibilities, roles, and delivery methods include:
- suspension of most elective in-person visits and replacing them with virtual visits that conform to the guidelines requested by the Centers for Disease Control and Prevention (CDC) and other public health authorities;
- providing treatments or care outside the general practice areas and for which they may not have the most up-to-date knowledge;
- coming out of retirement to help relieve workforce shortages related to the health crisis
- inadequate supplies of safety equipment that could result in the transmission of the virus from patient to physician and then to additional patients, or directly from one patient to another;
- shortages of equipment, such as ventilators, that can force facilities and physicians to ration care;
- inadequate testing that could lead to delayed or inaccurate diagnosis; and
- delays in treatment for patients with conditions other than the Coronavirus.
In these and other scenarios, doctors and other medical support staff face the threat of medical liability lawsuits due to circumstances that are beyond human control. These lawsuits may come long after the public memory of the sacrifices of many doctors and clinicians may have been forgotten.
From a different perspective, even physician advocates such as the American College of Physicians argue that such protections should not apply to gross negligence or intentional harm to patients. The ACP published the following statement to provide some clarity for physicians regarding malpractice liability. The report offers some insight as to the risk factors involved in providing medical services during the crisis.
“ACP chapters should urge their state officials to provide physician (and facility) immunity from civil liability for harm:
- caused in the course of providing medical services in response to the COVID-19 outbreak;
- caused by volunteer physicians acting in good faith for care provided in response to COVID-19;
- resulting from a federal, state or local directive, including but not limited to those to cancel, delay, or deny care as a result of the COVID-19 pandemic, provided that such directive, guidance, policy or procedure does not result in a physician participating in discrimination against a class or category of patients (e.g., based on age, race, ethnicity, disability, sex, gender identity, social status or other personal characteristics) as stated in ACP’s policy on stewardship and allocation of health care resources during health system catastrophes including COVID-19.”
- Chapters may also provide comments or draft state crisis standards of care to emphasize consistency with ACP policy opposing discrimination against a class or category of patients (e.g., based on age, race, ethnicity, disability, sex, gender identity, social status or other personal characteristics).
Certain types of medical negligence that could occur during the COVID-19 crisis and which might be grounds for making a claim include:
- Alleged failures of hospitals to prepare for and respond appropriately and timely to coronavirus patients;
- The negligent failure of hospitals and other healthcare providers to timely diagnose the Coronavirus in patients;
- The negligent failure to take appropriate precautions to prevent or limit the exposure to and spread of Coronavirus among patients not infected;
- The negligent failure to timely and appropriately treat coronavirus patients; and
- Negligent failures that result in the delay of unrelated treatments and procedures that cause harm to patients.
The hard truth is that physicians, hospitals, and medical support staff who are already putting themselves at considerable risk to treat COVID-19 patients are in some danger of being sued. Class action lawsuits are inevitable in the current litigious climate. In an environment fraught with uncertainty, where no official treatment for COVID-19 has been identified, and where emotions run high when a loved one dies from an invisible enemy, litigation is entirely possible.
Many doctors, hospitals, and medical support staff have courageously risked their lives to care for COVID-19 patients. Although being sued by a patient who the medical provider has risked so much to treat may be the farthest thing from the doctor’s mind, this litigation possibility should be a matter of concern.
A truly circumspect physician should put the risk into perspective. Liability protections for medical providers on the front lines of fighting the pandemic have been created or are in the process of being formulated. Some risk mitigation is in place, which should bring a measure of relief. However, physicians should not consider themselves shielded from malpractice litigation arising from the COVID-19 crisis.
Based in Pittsburgh, The Law Firm of Fenters Ward provides Pennsylvania with professional legal services including personal injury law, criminal law, and family law. Attorneys utilize technology to modernize the practice of law, which helps streamline the defense process and keep costs down. The Law Firm of Fenters Ward proudly represents more than a thousand new clients each year in every county of Pennsylvania.
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To learn more about physician liability and patient rights in the COVID-19 crisis, visit the Law Office of Fenters Ward website at https://fentersward.com. Contact the Pittsburgh, PA attorney by phone at (412) 545-3016 or by email at info@fentersward.com.
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