Thousands of people have presented to emergency departments (EDs) with symptoms consistent with coronavirus. Not all have been tested for various reasons.

Of those who were tested, some were discharged from the ED and never received the results. Of that group, some will die. “If a person comes into an ED looking for a test, and it was not provided, or subsequently passes away while waiting on results, there could be lawsuits associated with that,” warns Matthew P. Keris, JD, a shareholder in the Moosic, PA, office of Marshall Dennehey.

This is similar to malpractice claims alleging no one told ED patients about abnormal test results that came back after discharge. “If there is a positive test, and it sits for a day and a half, that time can be very critical with some of these patients,” Keris says.

Plaintiffs may try to show healthy people were tested, but someone with legitimate symptoms went untested. During discovery, the plaintiff attorney could ask for de-identified information on all other patients who received the test at the same time the plaintiff came to the hospital.

“If they find they were not as ill or dire as the person who didn’t get tested, the argument’s going to be ‘You didn’t do a good job of keeping the tests for people who legitimately needed it,’” Keris explains. One recent malpractice case involved an ED patient who left against medical advice (AMA) before abnormal lab test results returned.

“No one notified the patient, who died several days later,” Keris says. The same kind of case could be made with COVID-19 tests if patients leave the ED AMA after long waits and later experience a poor outcome.

Faulting an individual ED clinician in this kind of scenario is pretty implausible. “But if it’s a system breakdown, you can blame the brick and mortar — the hospital — and not sue the individual emergency physician,” Keris adds.