Emergency department (ED) providers, overwhelmed with COVID-19 patients and at risk for contracting the virus, also face potential legal exposure.

“The legal risks to ED providers are really enormous,” says Frederick M. Cummings, JD, an attorney in the Phoenix office of Dickinson Wright.

Many emergency physicians (EPs), ED nurses, and hospitals are stretching beyond a breaking point. “It’s become clear that the medical system was poorly prepared to meet the enormous needs created by the COVID-19 pandemic,” Cummings observes.

What it all means for ED malpractice claims remains to be seen. “The legal outcome of what surely will be one of the largest medical disasters in our country’s history is anybody’s guess,” Cummings offers.

Most claims likely will come down to how well the hospital and ED providers meet the challenges created by the pandemic. To reduce legal risks during this time, Cummings says ED providers should use best practices, document reasons for exercising judgment calls, and keep updated on all recommendations. “Many liability insurance carriers are stepping up to the plate and expanding coverage in the wake of the crisis,” Cummings reports.

However, the ED provider is responsible for confirming the coverage. Cummings gives these examples:

  • Before EPs volunteer their services in another state, they must make sure that state has waived their licensing requirement;
  • EPs should notify any applicable liability carrier of the intent to volunteer in another state in case that state has different insurance liability limits;
  • ED providers should notify their insurance carriers if they are asked to provide care outside their specialty or expertise. “They may or may not be covered,” Cummings adds.

It is unclear what standard of care would apply to a medical malpractice claim filed during the pandemic. “The standard of care is being developed in real time, as no one has faced this before,” says Megan Kures, JD, senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea.

Normally, it is what a similar EP would have done in similar circumstances. The problem is that there really are no “similar” circumstances. “This situation is wholly unprecedented,” Kures notes. The lack of testing kits and equipment is not the fault of the ED providers, and not even the hospitals, she adds.

“Because the recommendations regarding this virus are changing frequently, the standard of care is difficult to define,” says Andrew P. Garlisi, MD, MPH, MBA, VAQSF, medical director of Geauga County (OH) EMS and University Hospitals EMS Training & Disaster Preparedness Institute.

Garlisi says “basic, common-sense emergency department protocols should be protective. It would take a flagrant violation to trigger a malpractice action.”

The most critical ED patients will be prioritized if healthcare systems become overwhelmed. “Triage decisions will then be made that will miss potentially seriously ill patients,” Garlisi explains. This might include patients who are septic or those with possible heart attacks or strokes. “Under these extreme situations, it would seem reasonable that the threshold for medical/legal action would be raised significantly,” Garlisi adds.

Of all the legal risks faced by ED providers right now, “the most likely claim we are going to see coming out of this situation is a failure to diagnose and admit claim,” Kures says.

Available testing for COVID-19 does not provide immediate or even quick results. Whether patients actually have the infection is unknown at the time of the ED visit. “It is not always 100% clear which patients are likely to be fine with limited care and which will require aggressive supportive measures,” Kures notes.

ED providers can use risk factors in making these decisions. “But there are always going to be outliers,” Kures cautions.

It is not possible to admit every ED patient exhibiting symptoms, even with the potential to become seriously ill. “Even those with a presumptive positive diagnosis may be sent home if symptoms are not serious enough to warrant admission at the time of evaluation,” Kures says.

Deciding who is sick enough to admit, and who can go home, puts the ED provider in a legally risky situation since patients could decline quickly. “If there are adverse consequences, the provider becomes an easy target,” Kures says.

Hospitals face additional risks related to infection control processes. “We may see claims arising from situations where patients who are hospitalized for other reasons contract the virus from staff and develop related complications,” Kures predicts.

Another obvious liability risk comes from employees who allege the hospital failed to protect them. “With the shortages of PPE [personal protective equipment] and mandates that providers reuse and limit the use of PPE, this is a real landmine for hospitals,” Kures says.

Liability exposure for EDs and hospitals is going to be affected by various state and federal emergency declarations. “There are all kinds of waivers being issued. We’re just wrapping our heads around the one that just came out a minute ago when the next one comes out,” says David B. Honig, JD, an attorney in the Indianapolis office of Hall Render.

The “force majeure” legal principle is going to come into play as an overarching concept. “You can say it really isn’t the provider’s fault, that the crisis stems from the pandemic,” Honig says. Based on this legal principle, hospitals can point at supply chain problems that left them without equipment.

Regardless of any of this, creative plaintiff attorneys can come up with many different potential causes of action against an EP or hospital. “An equally creative defense attorney will find just as many reasons why at this particular moment of crisis, there is no individual or corporate liability,” Honig offers. Malpractice lawsuits still can be filed regardless of how many waivers are in effect. From there, the courts will have to sort out which can proceed and which can be dismissed. “Only after we get through this is this gigantic domino cascade of litigation going to happen,” Honig says. “People who are injured are going to say, ‘Where is my recompense?’”

Things might look different months or years after the height of the crisis. “We’re going to return to this fantasy of normality that says, ‘OK, the crisis is over now, so we can treat these claims as if this pandemic never happened,’” Honig predicts.

The defense’s job will be to remind juries of the reality at the point in time of the ED care at issue. “The really interesting question is not whether people are going to sue; they are. It’s how courts are going to handle it,” Honig offers.

Defense attorneys can argue the pandemic was an intervening factor that shields ED providers from liability; therefore, the case should be dismissed. “The judge will either agree or will say the defense attorney gets to argue that to the jury,” Honig says.

Even if cases are allowed to proceed, some allegations might be covered by waivers. If a lawsuit claims the patient should have been treated by a board-certified EP and was in fact treated by a physician from another specialty altogether, whether licensure requirements were waived will become important. “The hospital can say, ‘You cannot create a tort out of a crisis when we were doing the things we were explicitly told we were supposed to do,’” Honig explains.

As for allegations that EDs should have been more prepared with staffing or equipment, the defense can prove the hospital made good faith attempts to obtain additional resources. “By definition, you can’t be prepared for something that is an act of God, in legal terms. You can to some extent anticipate it, but you can’t prepare for it,” Honig says.

The question for ED providers becomes: How does one document that failures were the result of the crisis, rather than negligence? To some extent, it will go without saying. “It’s almost hard to imagine how that doesn’t happen because everybody is operating in crisis mode,” Honig observes.

ED charts are not going to explain why a particular patient was kept waiting and why another patient was treated instead. “The reality is they’re not going to actively document all of those triage decisions — and shouldn’t, because they are too busy caring for people,” Honig says.

Many ED charts are going to include minimal documentation. “Documentation as a whole is going to suffer. You are then trying to recreate things two or three years down the road,” says Matthew P. Keris, JD, a shareholder in the Moosic, PA, office of Marshall Dennehey.

This seems advantageous to plaintiffs, but it only goes so far. Jurors and judges are likely to be sympathetic toward individual ED providers. “Honestly, I don’t know if a plaintiff attorney would want that case,” Keris says.

Sympathy for ED defendants likely is not just in the near term, but for the next several years. “You may be seeing the ‘we were overwhelmed’ defense, with staffing, documentation, supplies, general oversight of the facility, and possibly even credentialing of staff,” Keris predicts.

In the months and years after the pandemic, some spurious malpractice lawsuits are inevitable. “We’ve all been in ERs where somebody’s grumbling with a cut finger and how they had to wait seven hours. That person with the cut finger is the one who’s going to bring a lawsuit,” Honig says.

It is a safe bet that plaintiff lawyers are going to pursue all kinds of claims against EDs and hospitals. “You’re going to see lawyers looking for class action work, and you are going to see individuals looking for individual cases,” Honig says.

As in all times of crisis, some unscrupulous lawyers and individuals are bound to try to capitalize on the situation. “Where you’re going to see the big legal action is where people are trying to take advantage who, frankly, are trying to make a buck off this,” Honig says. Plaintiff lawyers who pursue such cases are going to face a tough crowd in the form of judges and juries. “Doctors who typically see 100 ED patients a day and are trying to manage 300 patients are not going to be the ones the courts go after,” Honig says.

Judges and juries will have lived through the pandemic, too. Defense attorneys are going to be the ones to remind them of it. “The law side has got to say to the medical side, ‘You take care of people, and we’ll take care of you when it’s done,’” Honig says. “We’ll just hope that the judges will go along.”

Editor's Note

Emergency department (ED) providers and hospitals face significant legal risks, some clear and others unknown, during the COVID-19 pandemic. The cover of this special issue of ED Legal Letter is about the likelihood of a surge in malpractice claims and why those cases might end up dismissed. Inside, we cover the legal standard of care during COVID-19, obstacles for plaintiffs who name emergency physicians as defendants, legalities if clinical practices are different from normal times, what newly enacted protections really mean for providers, allegations likely to come up during malpractice lawsuits, and what Emergency Medical Treatment & Labor Act waivers mean for hospitals.