A No-Win Situation for Health Care

The perils facing hospitals due to the coronavirus

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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 health care 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 spread 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. 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 hoped 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 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 new coronavirus and contracts COVID-19—a scenario that is also not hard to imagine. In these situations, can hospitals modify their consent forms 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 sign 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 do they 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, and ethical issues that 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 for having to determine which patient “needs” a precious ventilator more than another. Can health care 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 health care 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 then 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 that 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 that takes today’s circumstances into account?

Unfortunately, given the magnitude of this crisis that we currently confront, and the unknown aftermath that awaits, the medical-malpractice issues that will arise from this pandemic have no 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 health care professional’s decision is more important than ever. Documenting the circumstances that contributed to a health care treatment decision, and how the constraints of the coronavirus crisis impacted the same, is critical to the ability to later defend health care 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 in place are current, adhered to, and 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 health care 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 health care providers are seen as heroes in a light that is usually reserved for firefighters and others on the frontline of a disaster. With every shift, physicians, nurses, and other health care professionals 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 these efforts, may positively alter a jury’s view as to the hard work that hospitals and health care 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 for 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 that are unfolding now begin to fade, so, too, may the heightened sense of respect and gratitude towards the health care industry.

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About The Authors
Andrew S. Kessler

Andrew S. Kessler is a partner at Wood, Smith, Henning & Berman. akessler@wshblaw

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