The Doctor’s Advocate | Second Quarter 2023
An Ounce of Prevention

Malpractice Lawsuits and COVID-19: Top Allegations and Protections for Healthcare Professionals

Peter A. Kolbert, JD, Senior Vice President for Claims and Litigation Management, Healthcare Risk Advisors, part of TDC Group

Healthcare professionals strive to find evidence-based solutions and provide safe care within reasonably established workflows. But the COVID-19 pandemic meant that clinical teams were forced to rapidly adapt care routines as they battled shortages of equipment and staffing while coping with evolving treatment protocols for this brand-new pathogen. This occurred even as patients filled hospitals to capacity, then beyond capacity, and still kept pouring in.

Under these conditions, state and federal policymakers enacted many liability protections to enable healthcare professionals to provide care through the crisis without worrying about being sued.

Now that more malpractice claims related to the pandemic’s early days are reaching the courts, hospitals and healthcare professionals are wondering: What types of claims will we see related to COVID-19? And will the qualified immunities provided by federal and state governments hold up under challenge?

Types of Claims Related to COVID-19

The lawsuits filed so far related to COVID-19 have not been as numerous as anticipated. The public recognizes that hospitals and healthcare providers stepped up and proved themselves equal to their Herculean tasks. Nevertheless, patients can and will bring claims. Some common types of claims include the following:

• Claims against employers: The most prevalent claims connected to COVID-19 are those relating to employers’ liability. For instance, early in the pandemic, many healthcare workers lacked sufficient personal protective equipment (PPE), and we are now seeing more of those situations maturing into lawsuits.
• Claims related to civil rights: A significant number of civil rights claims have also been filed to challenge government policies, mainly infection prevention measures such as vaccine mandates, social distancing, and masking.
• Claims regarding care for a patient with COVID-19: These claims contend that there was a treatment delay or failure to treat a COVID-19 patient and that the delay or failure led to a poor outcome, whether the result was patient injury or death.
• Claims regarding failure to prevent the spread of COVID-19: Some claims allege failure to prevent infection, such as when patients believe they contracted COVID-19 during a visit to an emergency department.
• Claims regarding care delays related to COVID-19: During the spring and summer of 2020, and even at some points subsequent to that, many elective procedures and screenings were suspended by government mandate. Patients are bringing claims contending that, for instance, their colon cancer should have been diagnosed earlier, and now their prognosis is worse. These claims allege a delay or failure to diagnose a condition other than COVID-19.
• Claims related to telehealth: Simply as a matter of statistics, considering the large increase in telehealth care during the pandemic, we anticipate an uptick in malpractice claims involving telemedicine. So far, however, these types of claims have been rare.

Courts were shuttered for a time early in the pandemic, and then civil dockets were running more slowly than usual. By now, however, it appears we may have reached a steady state, in terms of the number of claims related to COVID-19 and the pace at which they are arriving. The cycle time—meaning how long it takes a case to progress from filing to conclusion—is returning to something akin to a prepandemic timeline.

Types of Qualified Immunities for Healthcare Professionals

During the pandemic’s early days, with hospitals overwhelmed and healthcare in crisis mode, the standard of care evolved moment by moment, and many providers were practicing outside their usual settings. Policymakers began easing their usual—and usually slow—processes around licensing and credentialing, so that healthcare professionals could cross state lines and pitch in where they were needed. Likewise, many state and federal entities enacted qualified immunities so that healthcare professionals could provide care without worrying about getting sued.

• Federal protections: In early 2020, the Secretary of Health and Human Services declared a public health emergency and engaged the Public Readiness and Emergency Preparedness Act (PREP Act), providing a significant safeguard for healthcare professionals. Barring willful misconduct, for cases heard in federal courts, the PREP Act shields healthcare practitioners from most civil liability related to care provided to patients with COVID-19 and care disrupted by COVID-19.
• State protections: Whether by executive order from a governor’s office, by legislative action, or both, many states have also established some level of immunity for medical and dental practices covering situations related to COVID-19. (Track current legislation on our interactive state map.)

Taken together, these federal and state protections often mean that a plaintiff must prove gross negligence in order to prevail in court. The particulars vary by jurisdiction. Definitions of gross negligence, which also vary by venue, often consider conduct that is so reckless, it is apparent even to a layperson. Because such conduct is, fortunately, rare, many plaintiffs’ allegations are predicted to be defeated in the courts—provided that state and federal qualified immunities hold up to challenges.

Federal and state qualified immunities for healthcare providers were never intended to last forever. Many have already expired, meaning that they do not provide qualified immunity for care delivered now. That said, these immunities still apply to the time periods for which they were intended.

Some plaintiffs’ attorneys have challenged states’ qualified immunity statutes, arguing that when the statute expired, it was annulled as if it had never been enacted at all—but this is not accurate. A recent court decision (Antonella Ruth v. Elderwood at Amherst, et al.) upheld the validity of the New York statute.

We believe this ruling in support of qualified immunity in New York and elsewhere will be helpful in responding to future claims. We anticipate it will contribute to the dismissal of cases that claim negligence when hospitals and providers were doing everything they could to respond to all of the challenges that COVID-19 created—when the public asked them to minimize death and illness and maintain public health.

Additional Resources

For additional patient safety and risk management resources, visit our COVID-19 Resource Center for Healthcare Professionals.

See more issues