Since the Covid-19 pandemic’s emergence, coronavirus-related negligence cases have appeared, leaving physicians, liability insurers, and malpractice attorneys anxious. Patients have come forth with claims concerning delayed or overlooked Covid-19 diagnoses, delayed treatment or testing, insufficient infectious-disease protocol, and failure to identify medical contraindications for Covid-19 vaccination. According to the CDC, there have been upwards of 45 million coronavirus cases in the US and over 734,000 deaths to date.
Peter Kolbert, senior vice president and chief claims officer at The Doctors Company’s unit Healthcare Risk Advisors, forecasts a significant increase in the number of Covid-related malpractice suits within the next two years, attributing the rise in claims to the public’s eventual numbness to and dismissal of the immense pressures posed to frontline healthcare workers during the pandemic.
A key factor influencing the rise in Covid-related malpractice suits has been the need for limited patient-physician communication due to infection-control protocols, often rendering patients and relatives unable to meet in person with physicians to discuss care and be observed. This, in turn, can leave patients and their loved ones feeling as though they haven’t received the level of care that they need.
Another risk for potential lawsuits comes when physicians choose to turn down patients seeking Covid-19 vaccination. Florida-based medical malpractice plaintiff attorney Joseph Osborne foresees problems arising when physicians choose to reserve vaccines for federal or state-classified “high priority” patients. Consider a physician who turns away a young, obese patient for the aforementioned reason. Should that patient get sick with Covid-19 a few weeks later, the physician would be at great risk for being sued.
Measures like the federal PREP Act have been instituted to help protect physicians. The PREP Act permits negligence suits solely in situations of death or serious injury claimed to be due to willful misconduct. According to Florida-based Holland and Knight attorney Nathan Adams, physicians who administer vaccines in accordance with CDC guidelines should be protected under the PREP Act. However, the level of physician protection becomes vaguer when considering allegations like a doctor’s failure to identify contraindications in patients who have adverse reactions to vaccination. According to Michael Stinson, vice president of government relations and public policy at the Medical Professional Liability Association in Maryland, physicians should never assume that they will be protected under the PREP Act. While they may have some state protections, those may not transfer to the federal courts, as there is currently no national liability standard.
Physicians can protect their practices by reducing liability risks. One strategy for physicians is to document the unfolding of Covid-related events within their practice and their greater community. According to a Psychiatric Times article, Stephanie Sheps, vice president of claims at medical liability insurance provider Coverys Specialty Insurance Company, tactical risk management via detailed timelines is key, starting with a practice’s initial observed Covid-19 case, when testing became available, and any community-declared states of emergency. Furthermore, Sheps suggests documenting other critical dates, such as when PPE was limited and dates pertaining to staffing shortages, furloughs, or reallocations.
