Even if patients and families brought COVID-19 cases to them, plaintiff attorneys say they are leery of taking them because judges and jurors who have lived through this pandemic and know the ordeals of healthcare providers are unlikely to be sympathetic unless truly egregious conduct is shown. It’s a different story for nursing homes, which enjoy far less public good will.
“I wouldn’t want to try to convince six people on a jury that some doctor who wants to help is responsible for a COVID-19 outcome,” Osborne said. “That’s a total uphill battle.”
“The big question is how receptive will courts be to such claims,” Stinson agreed. “I wouldn’t be surprised if the plaintiff bar is skeptical about bringing cases now, but time could change their minds.”
Indeed, at least one plaintiff firm that initially advertised for COVID-19 cases pulled its ads and apologized after getting fierce blowback from physicians.
Last March, the firm of Mannarino and Brasfield, in Rockford, Illinois, published an ad in the publication Medical Malpractice on what the public should know about medical negligence during the COVID-19 crisis. It warned of situations in which patients present with a dry cough or other coronavirus symptoms, and the doctor “refuses” to test for the virus. The ad said the medical community “was largely unprepared” for the disease.
Along with other physicians, Gita Pensa, MD, a clinical associate professor of emergency medicine at Brown University, Providence, Rhode Island, phoned the Rockford firm and left a message criticizing the ad. She said she got a call back apologizing for it.
The law firm subsequently published an ad stating that it recognized “the enormous sacrifices and risks front-line health care workers are making” during the COVID-19 crisis and that it does not intend to pursue claims against medical personnel relating to care for patients with COVID-19 during the pandemic. The firm did not respond to requests for comment for this article.
Pensa believes physician criticism convinced the Mannarino and Brasfield law firm and others to pull back ads because “the optics of it were very bad.” Still, she’s worried about lawsuits arising from the not uncommon cases in which patients come in with mild, flulike symptoms and adequate blood oxygen levels, are sent home, and then return very sick and, in some cases, die.
“To think somebody would blame you for an adverse event when no one knew how to best care for COVID-19 patients ― and physicians were risking their own lives in providing the care ― is galling,” she said. “If there are egregious cases [of malpractice], they deserve to be brought. But if the patient received adequate care and it’s an unexpected death, it’s absurd” to sue.
There are measures in place to protect physicians. One such instrument is the federal PREP Act. It covers measures to treat, diagnose, cure, prevent, or mitigate COVID-19, including approved vaccines and drugs, medical devices, equipment, and diagnostics. It allows state negligence suits only in cases of death or serious injury allegedly caused by willful misconduct. Cases must be filed in US District Court in Washington, DC, and are heard by a three-judge panel.
Providers who administer the vaccines in a manner consistent with guidelines from the Centers for Disease Control and Prevention should be protected, said Nathan Adams, a partner at Holland and Knight, in Tallahassee, Florida, who has studied the PREP Act.
There’s an open legal question, however, over the extent of protection beyond that, such as in cases alleging a physician’s failure to provide a vaccine or failure to identify contraindications in patients who subsequently suffer an adverse reaction to the vaccine.