Protect health-care workers from COVID litigation: A plaintiff’s attorney says medical professionals should be shielded

By Benedict P. Morelli National, New York Source

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  • May 29, 2020

SOURCE: New York Daily News

As a plaintiff’s attorney for four decades and past president of the New York State Trial Lawyers Association, I support medical malpractice litigation. In fact, I believe medical professionals should be held to a higher standard than others since they hold peoples’ lives in their hands.

But today, as we fight to stop COVID-19 from devastating our country, I applaud New York’s Emergency Disaster Treatment Protection Act, which provides civil and criminal immunity for health-care workers fighting the coronavirus. Gov. Cuomo should keep these protections in place as long as we are asking doctors to treat patients with COVID-19 while enduring extraordinary limitations and challenges.

We need to recognize that the law simply should not apply to the current situation. The burden in medical malpractice cases is a “reasonable standard of care,” meaning that a doctor provided a level of care that another doctor would have provided under similar circumstances.

Determining a reasonable standard at this moment is impossible. As more people across the country become infected and hospitalized, hospitals are facing a critical shortage of personal protective equipment, ventilators, and even health-care workers. Hospitals have had to go to extraordinary lengths to keep up with the ever-growing number of hospitalizations, including pulling medical students out of school, having doctors in unrelated specialties treat COVID patients, and asking doctors and nurses to come out of retirement, because the health-care system is wholly unequipped to deal with this pandemic.

These doctors are risking their lives and their families’ lives every single day to try to save ours. In New York alone, doctors have been asked to work out of makeshift field hospitals in Central Park and the Javits Center, refrigerate bodies in trucks and make split decisions on who might live or die as a result of a limited supply of ventilators.

None of this is reasonable. There is no standard to apply. These are unprecedented circumstances. In fact, doctors could be perceived as more negligent if they were unwilling to take extreme measures in these sorts of circumstances, rather than follow “standard procedure” to no avail.