According to the U.S. National Library of Medicine, “Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Medical malpractice is a component of tort law, which addresses professional negligence and offers reparations for civil offense. Some common examples of medical malpractice include misdiagnosis / delayed diagnosis, prescription drug errors, surgical / procedural errors, and failure to treat. However, until the recent COVID-19 outbreak, medical malpractice suits related to a pandemic have rarely been discussed. In this blog post, Experts.com aims to shed light on the topic with insight from Emergency Medicine Members, Sajid R. Khan, MD, and Vipul Kella, MD, MBA FACEP.
The COVID-19 pandemic brought about a plethora of problems for citizens, businesses, and industries all over the globe. According to Dr. Kella, “The pandemic placed enormous strain on our health systems: hospitals were operating at maximum capacity, supply shortages were well-publicized, and healthcare providers were scarce and overworked.” To add, during the pandemic, medical professionals had to simultaneously learn about the nature of the virus, its symptoms, and how it affected people of all ages. Despite the circumstances, essential workers in the medical field have abided by their ethical duty to commit no harm and to save their patients to the best of their ability. With the mystery of an unprecedented illness, and the learning curve associated with it, should the medical community be held to the same medical malpractice standard for COVID-19 as for other illnesses?
To his knowledge, Dr. Khan is unaware of any COVID-related malpractice lawsuits. However, to make a medical malpractice claim in most states, deviation from the standard of care must be demonstrated. Dr. Khan confirmed that the standard of care has frequently changed throughout COVID-19 due to the oddity of the situation. “Therapeutic recommendations change from month to month, making establishment of medical malpractice that more challenging,” he added. During the pandemic’s inception, healthcare professionals had to care for patients and prioritize their own physical well-being. Especially in populated areas like New York City, the medical community faced a scarcity of supplies. Dr. Khan, and many other Emergency Medicine professionals, have participated in a multitude of discussions about how to best select the patients who had the strongest chance of surviving. This of course is not the preferred method of treatment, but desperate times call for desperate measures. He stated, “It would be irresponsible to hold providers responsible for failing to provide optimal care to patients with such an illness.” Through the news and social media, the whole world has seen the medical community in action to help minimize the spread of COVID-19. Has the United States government taken any action to minimize the legal ramifications towards the healthcare industry? What measures can healthcare providers take to reduce the risk of medical malpractice involvement?
According to Dr. Kella, there have been a few acts passed by the federal government to alleviate the stress of the medical community. He mentions the Public Read and Emergency Preparedness (PREP) Act and the Coronavirus Aid Relief and Economic Security (CARES) Act. The PREP Act, amended by the US Department of Health and Human Services, provides legal protections to medical providers, whereas the CARES Act protects healthcare providers offering volunteer services during the pandemic against liability. “These regulations were good news for physicians as they allowed more leeway for trying to deliver care during difficult circumstances that were often out of their direct control,” Dr. Kella mentioned. Although there is protective legislation, this does not mean the medical community should not maximize efforts to minimize medical malpractice lawsuits. COVID-19 is known to advance a patients’ pre-existing or chronic disease. For instance, the standard of care has altered throughout the pandemic and, as such, Dr. Kella has suggested healthcare providers to meticulously check the documentation and routines of their patients to avoid negligence.
As the United States produces and administers vaccinations, the medical community’s knowledge of COVID-19 expands. Medical malpractice may not have played a large role throughout the beginning of the pandemic. As the days pass and perhaps more litigation arises, holding COVID-19 medical professionals to a strict standard of care, unless it is an egregious departure, could have a chilling effect on the medical community. As was apparent in the middle of the outbreak, the last outcome our country needs is fewer doctors and nurses.