Hospitals May Face Post-Coronavirus Legal Risks

Andrew S. Kessler


May 14, 2020

The coronavirus pandemic is changing how medical care is being delivered in the United States, with the surge of patients streaming into emergency departments across the country overwhelming hospitals. Patients are waiting in lines outside facilities and hospitals are erecting temporary triage areas, emergency rooms and intensive care units to deal with the influx. While many recognize the difficult circumstances health care institutions and medical professionals are confronting and the sacrifices they are making, those same hospitals and professionals may face a rise in medical malpractice claims once the pandemic abates.

Due to the unprecedented numbers of patients seeking emergency care, hospitals are delaying elective and non-emergent surgeries to preserve facility flexibility and to ensure appropriate staffing. For example, some are advising patients with slow-growing cancers that surgery will be delayed four to six weeks or longer until the current surge of patients subsides. The hope is that these calculated delays will not affect a patient’s outcome, but it is not difficult to imagine that the unexpected metastasis of a tumor or a patient’s untimely death will prompt a medical malpractice claim.

Other civil actions may emerge from situations in which a patient is instructed to present to the hospital for an elective procedure and contracts COVID-19. In these situations, can hospitals modify its consent form for “non-urgent” surgeries to include a waiver for any injury that the patient may sustain from the coronavirus? If so, will such a waiver be considered valid? Can patients knowingly and voluntarily contract away certain rights because they “wanted” or “needed” to enter a hospital in the middle of a pandemic? It is a sobering proposition to consider if a jury ever confronts these issues.

Medical facilities and professionals will face difficult questions about the decision-making process to bring a patient into the hospital, but also the policies and procedures hospitals adopted to address the pandemic. Has the hospital properly updated policies and procedures addressing this level of infectious disease? Is equipment being inspected more frequently and cleaned properly given the sudden surge in use? Do the technicians responsible for monitoring ventilator settings have the proper training and experience? Hospitals and administrators need to plan for all of these issues, any one of which might yield a disastrous outcome in a courtroom.

There are also difficult legal and ethical issues to face. Given the expected number of patients requiring hospitalization and critical care, hospitals could face claims for failing to have the necessary equipment to address patients’ needs. Moreover, physicians may be responsible for determining which patient needs a ventilator more. Can health care professionals make these decisions without fearing having to justify them later to a jury? Attorneys who regularly defend hospitals and health care professionals should prepare to defend their client’s decision to provide a ventilator to a younger patient with fewer co-morbidities instead of an 80-year-old with cardiac issues who died without that care.

Unfortunately, given the magnitude of this crisis that we currently confront, and the unknown aftermath, the medical malpractice issues arising from this pandemic have no easy remedy. Regarding the medical decisions concerning the timely delivery or delay in care, it is more important than ever that health care professionals document the factors that led to a decision carefully and in detail, including the constraints imposed by the coronavirus. This is critical to later defending health care professionals called to answer for a less-than-favorable outcome.

Hospital administrators making decisions as to how to safely triage and treat patients suffering from COVID-19 must attempt to ensure that the decision-making process is as transparent as possible and that policies and procedures are current, adhered to, and that such adherence is documented.

With every shift, health care professionals put their lives, and their families’ safety, on the line to provide care to those suffering from COVID-19. The public’s perception of these efforts may positively alter a jury’s view in potential malpractice cases, subconsciously easing the standards upon which these professionals and institutions are judged when a poor outcome occurs. But as this pandemic subsides and courthouses eventually re-open, this reverence may have a relatively short shelf-life, so hospitals and health care professionals should prepare now.

Andrew S. Kessler is partner at Wood Smith Henning & Berman, LLP (Philadelphia Office).