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It’s a No-Win Situation: The Perils Facing Hospitals Due to the Coronavirus

April 6, 2020

The Coronavirus is forever changing the landscape in which medical care is being delivered in this nation. The surge of patients streaming into emergency departments across this country is such that hospitals simply cannot keep up. Patients are waiting in lines outside facilities to be examined and hospitals are erecting temporary triage areas, emergency rooms and intensive care units to deal with the influx of the critically ill. While many recognize the difficult circumstances healthcare institutions are confronting and the sacrifices being made by medical professionals during this crisis those same hospitals and professionals may face another crisis once the Coronavirus abates—a rise of medical malpractice claims.

Due to the unprecedented numbers of patients needed to be seen on an emergency basis, hospitals have had to delay elective and non-emergent surgeries in order to preserve facility flexibility and to ensure appropriate staffing of the hospital. Patients with slow growing cancers are being advised that surgery will be delayed from four to six weeks or perhaps longer until the current surge of patients subsides. While it is hope that these calculated delays will not affect a patient’s outcome, it is not difficult to imagine that the unexpected metastasis of a tumor or the untimely death of a patient will not be the subject of a medical malpractice claim.

Other civil actions may emerge from situations in which a patient who is instructed to present to the hospital for an elective procedure is unfortunately exposed to the Coronavirus and contracts COVID-19. One can envision the claims arising from these exposures. In these situations, can hospitals modify its consent form for “non-urgent” surgeries to include a waiver by the patient for any injury that the patient may sustain from the Coronavirus? If so, will such a waiver even be found to be 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 is ever confronted with these issues.

Difficult questions will be posed not only about the decision-making process to bring a patient into the hospital environment but also about the policies and procedures the hospital adopted to attempt to address a once in a generation pandemic. Has the hospital properly updated policies and procedures with regard to addressing this level of infectious disease? Is equipment being inspected more frequently given the sudden surge in utilization? Is it being properly cleaned? Are the technicians who are responsible for monitoring ventilator settings properly trained and possess the requisite degree of experience and expertise? All of these issues, any one of which might yield a disastrous outcome in a courtroom, need to be considered and planned for by hospitals and the administrators who operate them.

Medical-legal-ethical issues which ultimately may have no “right” answer will also undoubtedly arise from this pandemic. Given the expected number of patients who will need to be hospitalized and who will need critical care, hospitals could be facing claims for failing to have the necessary equipment to address these patients’ needs. Moreover, physicians may be responsible with having to determine which patient “needs” a precious ventilator more than another. Can healthcare professionals really make these types of decisions without fear of having to answer for them later before a jury of their peers? Attorneys who regularly defend hospitals and healthcare professionals will need to be prepared to defend their client’s decision that a younger patient with fewer co-morbidities was more “worthy” of a ventilator than an 80-year-old who has cardiac issues who died without access to the care that could have saved his life.

While the Courts have been closed by the Coronavirus, one wonders whether this pandemic will spur changes to the law. Beyond tolling statutes of limitation, will State Legislatures enact new laws to modify the concept of the standard of care in order to address the cases which will inevitably arise as a result of the decisions that are being made today or will it be left to the Courts to create precedent which takes today’s circumstances into account?

Unfortunately, given the magnitude of this crisis that we currently confront, and the unknown aftermath which awaits, the medical malpractice issues which will arise from this pandemic have no easy “one size fits all” remedy. With regard to the medical decisions that must be made concerning the timely delivery or the delay in the provision of care, careful and detailed documentation of the factors that led to a healthcare professional’s decision is more important than ever. Documenting the circumstances that contributed to a healthcare treatment decision, and how the constraints of the Coronavirus crisis impacted the same, is critical to the ability to later defend healthcare professionals who are called to answer for a less than favorable outcome.

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

It cannot be denied that we are at a unique time in our history–confronting a virus for which no vaccine currently exists. As litigation has already started to emerge as a consequence of the decisions that are being made in this quickly changing environment, hospitals and healthcare professionals should carefully document the decisions being made in order to ensure that the needed context exists to counter and successfully defend any retrospective examination of the same.

Today, hospitals and healthcare providers are seen as “heroes” in a light usually reserved for firefighters on the frontline of a disaster. With every shift, physicians, nurses and other healthcare professional put their lives, and the well-being of their families, on the line to provide care and treatment to those already suffering from COVID-19. These endeavors, and the public’s perception of the same, may positively alter a jury’s view as to the hard work that hospitals and healthcare professionals expend on behalf of and for the benefit of society. In turn, this new perception may have the effect of subconsciously easing the standards upon which these professionals and institutions are judged when a poor outcome does occur. Nevertheless, we must also be mindful that as this pandemic subsides and courthouses eventually re-open to again conduct trials, this newly found reverence with which these institutions and individuals are held may have a relatively short shelf-life. As more time passes and the events which are unfolding now begin to fade, so too may the heightened sense of respect and gratitude towards the healthcare industry.

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