IF YOU ARE A VICTIM OF MALPRACTICE OR NEGLECT DURING THE COVID PANDEMIC, WOULD YOU BE ALLOWED TO SUE? COULD YOU WIN?
There is a long history in California of industry groups using real or contrived crises to place pressure on our government representatives. In the legal area, they seek laws protecting them from repercussions for their own wrongdoing.
As a result, victims of unacceptable health care have been subjected to severe limitations of their rights for a variety of marginal reasons, ranging from claims of a malpractice insurance crisis to claims of needs by hospitals to hide evidence of their own wrongdoing in order to promote candor.
Recent events have resulted in these forces again lobbying for even greater amnesty for their wrongdoing. This time, in the name of the COVID crisis, health provider trade organizations have actively argued for blanket immunity for virtually any wrongs they may commit during the COVID-19 crisis.
This article discusses these attempts to disenfranchise patients from basic legal protections in the wake of COVID. It then sets forth arguments supporting and against the immunity that provider trade associations now seek.
What Provider Groups Are Asking For
The Trump administration has been lobbying for state legislation since the beginning of the COVID crisis. On March 24, 2020, Alex Azar, the secretary of the Department of Health and Human Services, issued a letter urging all governors to provide civil immunity for health professionals treating COVID-19.
Mitch McConnell, the Republican Majority Leader of the Senate, has been demanding that Congress provide liability protections for all healthcare providers. He has been threatening to derail any subsequent COVID-19 stimulus package that does not include such provisions.
Similarly, thirty-six healthcare provider organizations through America have been pressuring governors and others to shield healthcare providers from civil and even criminal
liability for events occurring during the COVID pandemic. These virtually blanket protections they seek would apply to doctors, nurses, nursing homes, assisted living facilities and hospitals, and would essentially obviate all their responsibility for their wrongdoing.
Caving to such pressures, 25 states already have issued executive orders or promulgated legislation to provide some greater degree of immunity to healthcare providers.
In California, six provider groups (including the California Medical Association, California Association of Health Facilities, the California Hospital Association, and the California Assisted Living Association) have been pressing Governor Gavin Newsom to make an executive order.
They have asked him to grant almost all healthcare providers almost complete immunity for virtually all wrongdoing during the pandemic. The only exceptions would be for the most egregious wrongs, and those would be made far harder to prove.
Specifically, these groups have asked Governor Newsom to decree that all providers and facilities “be immune” from “all civil, criminal and administrative wrongdoing” unless the victim can prove:
1. That the misconduct by the provider was intentional (that is being careless, lazy, disinterested, acting below acceptable standards in the community, etc. simply would not be enough);
2. Through “clear and convincing evidence” that the provider acted not only badly, but also willfully. This is an evidentiary hurdle far more difficult to satisfy than the “preponderance of the evidence” (slightly more likely than not) standard required in all other civil cases.
This seldom-used legal standard would make proving a case of intentionality against medical providers nearly impossible.
Victims have been able to meet these high hurdles on few occasions in the history of California jurisprudence, no matter how egregious the facts appear. It would be much harder to do so against healthcare providers.
This is because of: (1) the positive feelings towards the medical profession, particularly at this moment; and (2) the rare instance in which the public can believe that any professional actually pre-meditates causing the harm.
It is very difficult to prove what is inside any wrongdoer’s mind, much less a professional such as a physician or a law enforcement officer.
Moreover, the providers want this blanket protection to continue for the duration of an extremely vague “COVID-19 state of emergency.” Although that may sound on its face to be somewhat limited, there already is legislation in place protecting these providers for an actual, appropriate, declared state of emergency.
The Arguments For These Requested, Additional, State-Provided Protections
The provider organizations’ claims can be summarized by the politically skewed words of Mitch McConnell: “We are not going to let healthcare heroes…face a wave of lawsuits…so that trial lawyers can line their pockets.”
Less strident, more reasonable claims include that: (1) healthcare providers are putting themselves at risk and should, therefore, be protected; and (2) resources are scarce, and the burdens of extra patients have been high, putting providers in an extremely difficult situation.
That is, the trade associations argue, for example, nurses work around the clock, and ICUs are operating at several times full capacity, in the face of scarce supplies. Therefore, these “heroes” (doing the job for which they are paid, at risk as are grocery workers and many others) should be forgiven for anything they improperly do or fail to do.
The Arguments Against Additional Protections for Medical Wrongdoers
There is, of course, superficial appeal to such arguments. That is particularly so as healthcare providers have been the beneficiaries of our feelings of fear and helplessness, and our need to imbue someone with godly virtues and magic powers to protect us.
In analyzing these arguments, however, one must recognize that the real question is not whether this has been a difficult time for healthcare providers, or whether they deserve our appreciation, but rather: (1) who deserves protection as between the patient and the provider; and (2) are the requested additional protections necessary in light of all the circumstances?
The primary argument against the requested immunities is that patients and helpless seniors deserve protection as do the providers. That is, there is a question of balance.
Many legal experts, and almost all seniors and patient advocates, believe the proposed legislation and executive orders go way too far. The concern is that the proposals leave patients with no protection from medical malfeasance and in no way to hold providers accountable.
Indeed, statistics demonstrate conclusively that the medical malpractice crisis actually is on par with the COVID crisis. Indeed, so for this past year, by far more net new deaths in the United States have been caused by medical malpractice than by coronavirus.
It’s worth remembering that accountability is the main theory underlying much of our entire judicial system. But the immunity guarantees sought would preclude recourse in the face of even the most egregious forms of neglect (e.g., failure to feed a person in a nursing home, etc.).
Furthermore, it is feared that such proposals would encourage facilities to act inappropriately. For example, they would eliminate the motivations for nursing homes to follow onerous infectious disease protection requirements.
And, already, compliance by many nursing homes has been so lax that the federal agency that regulates nursing homes told governors they intend to step up penalties and enforcement of infection control efforts. This seems flatly inconsistent with taking away a victim’s recourse for the same wrongdoing.
Similarly, many nursing homes are knowingly understaffed, leading to care problems. And, reportedly, by the time of the COVID outbreak, almost 43% of all nursing homes had failed to comply with the federal requirement to develop a specific plan to handle outbreaks of contagious diseases.
Furthermore, despite dramatic anecdotes in the media, this enormous burden on hospital resources simply has not materialized for California providers.
Indeed, the great majority of California hospitals have not thus far been inundated with patients; but they have only had small to manageable numbers of COVID patients, so they are running well below their usual census of total patients, and according to this week’s Morbidity & Mortality Report from the CDC, non-COVID emergency visits have dropped 42%.
Certainly, there is no apparent reason that providers neither dealing directly with COVID patients nor over-burdened by the effects of COVID should gain additional protection. For example, why should an OB in an undercrowded hospital be granted immunity for serious missteps in his or her delivery care of a patient?
Protections That Already Exist Seem Sufficient
Regardless of the merit in protecting providers during the COVID crisis, it is dubious whether additional protections are necessary. That’s because reasonable protections for providers, and then some, already are in place in California.
Mitch McConnell’s attempts to turn trial lawyers into boogiemen simply are not supported in California by the facts. Medical malpractice is the least lucrative of any of the injury-related legal fields because of severe limits on both recovery and on the fees that lawyers in the field can charge on that recovery.
Further, there are a large number of evidentiary and other protections already in place to protect the perpetrators of medical malpractice, under a series of laws collectively known as MICRA (the subject of a future article).
Moreover, several California statutory laws already provide a broad immunity for persons providing care during true emergencies or in “Good Samaritan” situations. Indeed, at least eight separate provisions already exist in California, granting providers extensive protection.
For example, there is the California Emergency Services Act, California Government Code § 8659. That law mandates that any physician, surgeon, hospital, pharmacist, or nurse who renders care during a state of emergency at the express or implied request of any official or agency may not be held liable for almost any injury, with very few exceptions.
Similarly, multiple “Good Samaritan” statutes ensure that no provider will be held liable for good faith emergency care rendered at the scene of an emergency or during a medical disaster. Also, California Health and Safety Code § 1317 provides immunity for facilities, medical staff, nurses, and other employees who may be at risk for loss of life.
Furthermore, and perhaps most importantly, the law already in place for medical malpractice trials provides all necessary and fair protections for healthcare personnel and facilities. Under existing law, a provider can only be held responsible if he or she fails to meet a threshold level of care called “the standard of care.”
Under this legal doctrine, the healthcare provider will not be liable so long as he or she acted how a reasonable reasonably prudent provider would have acted under similar circumstances.
Thus, the existing law already provides situational protection for any and all additional burdens suffered by providers during the COVID crisis.
That is, in determining what is reasonable care under the circumstances (whether the provider met the standard of care), a jury would be required to take into account any relevant shortages of resources, unusual patient census and all other aspects of the situation that made more difficult the provision of appropriate care.
The COVID crisis, as all crises, requires deep breaths and sensible solutions. Providers should be protected from hardships of unusual situations beyond their control.
But for the great most part, these protections already exist. Providers should not avoid accountability for hypothetical problems, for issues that are not part and parcel of the COVID crisis nor get undue advantages at the expense of innocent patients and seniors.
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Posted in Legal News and tagged Covid-19, Medical Malpractice