Future of Medical Malpractice Lawsuits Following the Pandemic

The future of medical malpractice cases regarding COVID-19 is uncharted, much like the virus itself. As doctors and other healthcare professionals continue to work on the front lines and treat an unprecedented number of patients, there are heightened liability concerns for these workers that could result in more medical malpractice cases.

Medical malpractice is defined as when a medical professional deviates from the standard of care and acts negligently, thereby causing harm to the patient.

“The pandemic has called into question what practices are considered to be reasonable and responsible when working in a highly unusual circumstance, as healthcare professionals continue to face new demands and pressures.” explains Attorney John Fisher of John H. Fisher, P.C.

Proving Medical Malpractice Claims

In a medical malpractice lawsuit, it is the plaintiff’s responsibility to provide sufficient evidence to prove that the defendant committed an act of negligence, thereby demonstrating that the healthcare professional failed to provide accurate, acceptable, and proper care.

Over the past two decades, medical malpractice claims have shown that court verdicts tend to directly correlate to the strength of the evidence. A study observed that, over this period, medical professionals won 80 to 90 percent of jury trials when there was weak evidence of medical malpractice, 70 percent of borderline cases, and 50 percent of cases with strong evidence of medical malpractice.

Yet under new governmental measures instituted as a result of COVID-19, it may be more difficult to prove these claims in court due to increased liability immunity that has been put in place to protect healthcare professionals. Consequently, this may change what constitutes medical malpractice and the burden of proof that must be shown in a claim.

Additional Liability Immunity

In February, the Department of Health and Human Services announced an amendment to the Public Readiness and Emergency Preparedness (PREP) Act as a response to the coronavirus. This amendment expanded federal liability immunity for medical workers who provide treatment for COVID-19, stating that it shields providers “against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures” during the current public health pandemic. This liability immunity does not apply to situations in which the providers acted with willful misconduct.

Additionally, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was enacted in the following month, providing federal liability protection to volunteer healthcare professionals when they are rendering services that are within the scope of their medical license. With certain exceptions, it states that these providers “shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services” during the pandemic, regardless of whether they are a non-COVID-19 patient or not.

While the CARE Act increases liability immunity to healthcare workers, it does not protect them from liability regarding willful or criminal misconduct, reckless misconduct, gross negligence, or conscious blatant indifference to the patient’s rights and safety.

Current Factors Influencing Malpractice

Yet none of these provisions provide absolute immunity from medical malpractice claims, as each case depends on the specific facts and circumstances of the event. There are other factors that may influence medical malpractice cases following this pandemic.

The biggest challenge that healthcare workers currently face is accurately diagnosing patients. Factors such as limited testing supplies, difficulty in fully assessing patients, lack of adequate communication, and insufficient documentation increase the chance that physicians may fail to give an appropriate diagnosis.

Furthermore, healthcare professionals will now be treating a sicker patient population due to suspended outpatient care and postponed elective surgeries. As a result, patients are likely to return to doctors’ offices less healthy and weaker than they were prior to the pandemic, which can further complicate correctly diagnosing them.