The Coronavirus pandemic has created unprecedented changes in the field of medicine. Many
hospitals could face an influx of COVID-19 patients which may require intensive or immediate
medical treatment. Additionally, many hospitals and doctors may need to implement new
procedures to help prevent the spread of COVID-19 within their treatment centers. The
response to these challenges has resulted in new medical malpractice lawsuits related to
COVID-19. Several recent medical malpractice lawsuits pertain to improper treatment of
Coronavirus cases or an individual developing COVID-19 as a result of negligent or reckless
action.
What Types of Malpractice Claims Could Arise During COVID-19?
There are several actions that could qualify a medical malpractice claim during the COVID-19
pandemic. These actions can be taken by either a medical care provider, organization, or
hospital. In some cases, an individual may be able to file a claim against more than one party.
“While this is an incredibly stressful time for doctors and other healthcare providers, the
standard of care should not be compromised,” said Attorney Sean Domnick of Domnick
Cunningham & Whalen. “An injured person should not have to bear the cost of damages
resulting from the negligence or reckless action of a medical professional.”
Lawsuits could arise during COVID-19 that relate to a hospital or medical care provider’s
inability to treat Coronavirus cases in a safe and timely manner. Additionally, some lawsuits may
allege that an individual became exposed to and developed COVID-19 as a result of negligent
or reckless safety or sanitation practices.
Medical Malpractice Claims and COVID-19 Treatment
Some medical malpractice claims may result from the way hospitals, doctors, and other medical
practitioners treat individuals with COVID-19. This includes medical malpractice claims
regarding a person being injured as a result of a hospitals inability or failure to adequately treat
COVID-19 within an appropriate timeframe. Cases such as these may allege that a doctor
should have been able to treat a COVID-19 patient within a certain timeframe, but did not due to
negligence, reckless action, or an unreasonable lack of preparation.
Similarly, medical malpractice claims could arise alleging that while a doctor was able to
diagnose COVID-19, they did not provide treatment that would adhere to the standard of care.
This could include cases where a doctor does not admit a COVID-19 patient to a hospital under
the impression that they are healthy enough to self-quarantine at home and the patient then
subsequently dies due to the Coronavirus.
Medical Malpractice Claims and COVID-19 Exposure
Additionally, individuals may have a medical malpractice case if they suspect that they became
exposed to and developed COVID-19 due to a hospital or practitioner’s negligent or reckless
action. Claims regarding the failure to appropriately hinder the exposure to COVID-19 may arise
whenever a hospital is unable to provide personal protective equipment (PPE) to hospital staff.
Laws Regarding Medical Malpractice During COVID-19
There are several laws which may provide medical practitioners liability protections during the
COVID-19 pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES), which
was signed into law on March 27, 2020, includes some liability protections for volunteer health
service providers during the COVID-19 emergency response period. This law could protect
volunteer physicians and other service providers from claims related to the prevention,
treatment, and diagnosis of COVID-19 in some cases.
Similarly, the Volunteer Protection Act of 1997 (VPA) could provide additional liability
protections for individuals voluntarily performing services for government or non-profit
organizations. Under VPA guidelines, a volunteer must be licensed or authorized to provide
treatment in the state where the service is performed in order to qualify for liability protection.
Public Readiness and Emergency Preparedness Act (PREP Act) of 2005 could also provide
protection from medical malpractice claims during the COVID-19 pandemic. The PREP Act
could provide immunity protections from liability claims in limited scenarios whenever a
declaration is issued by the Secretary of Health and Human Services (HHS).
Medical Malpractice Claim Decreases During COVID-19
While many new medical malpractice claims may arise related to the treatment of COVID-19,
some types of claims may decrease during the pandemic. This includes claims related to certain
non-essential medical services that were closed as a result of the state of emergency declarations
or shelter-in-place orders. Many state governors closed non-essential businesses while stay-at-
home orders were in effect. While what qualified as an essential business varied between
states, some medical practitioners were affected, including dental offices, cosmetic surgery
providers, and elective operation services.
Disclosure of Risk During COVID-19
In response to the increased potential health risks and demands during COVID-19, some
doctors and hospitals across the United States are implementing additional protocols that may
proactively protect them from medical malpractice lawsuits. This includes updated disclosures of
risk and informed consent procedures that acknowledge the potential risk of contracting COVID-
19 despite doctors and hospitals employing best health practices.
However, an individual does not automatically relinquish their ability to file a medical malpractice
claim just because they were informed or signed a document acknowledging the risks of a
treatment or procedure. In some cases, a person may still have a medical malpractice case
whenever a health provider acted unreasonably or outside the standard of care.
Telehealth Practices During COVID-19
To proactively prevent the spread of COVID-19, many medical practitioners are implementing
telehealth treatment, the online or electronic delivery of health services. While telemedical
services may help deliver health services without direct interaction, many states have
established regulations regarding how and when online health services can be provided.
While some telehealth regulations have been adapted to give more doctors and practitioners
more liberties while providing services during the pandemic, an individual may still file a medical
malpractice claims whenever a health professional provides inadequate care. This could include
medical malpractice claims related to a failure to diagnose or misdiagnosis while providing
telehealth services.
COVID-19 Medical Malpractice Claims
Overall, the success of a medical malpractice claim related to Coronavirus could depend on
several factors. In many cases, an insurance company or similar organization may offer a
settlement amount based on their evaluation of the overall case. If a case goes to trial, a
medical malpractice claim may ultimately depend on the jury’s perception of if a health
practitioner or service provider acted within the reasonable scope of care.
