There are states that have issued various executive orders to reduce liability of providers during the COVID-19 pandemic, but legal protections continue to evolve.

“Liability changes every day, depending on the developments in the regulatory infrastructure,” says David S. Waxman, JD, a partner in the Chicago office of Saul Ewing Arnstein & Lehr.

Evaluating what all the state and federal protections really mean for emergency department (ED) malpractice claims is not clear. “It’s a complicated question,” says Sharona Hoffman, JD, co-director of the Law-Medicine Center at Case Western Reserve University in Cleveland.1,2

Some states offer broad immunity protections once a public health emergency is declared, and others do not. For instance, under Maryland law, a healthcare provider is immune from civil or criminal liability if the provider acts in good faith and under a catastrophic health emergency proclamation. “That would provide you with pretty broad coverage for a lot of scenarios. But other states don’t have that kind of protection,” Hoffman observes.

Even if an emergency physician (EP) is working in a state without a broad law in place, judges still will take the circumstances into account. “But it’s up the judge, it’s up to the jury. You never know what they are going to think,” Hoffman cautions.

Documentation of a huge surge of COVID-19 patients could bolster the odds of malpractice claim dismissal for an individual. “In the chaos of all of this, it’s not going to be possible to remember what was going on at a given day or hour,” Hoffman notes. Existing protections should cover care of non-COVID-19 patients, too. “It’s understood you’re going to have mayhem, whether it’s a broken leg, a heart attack, or COVID-19,” Hoffman explains.

The main message for EDs and hospitals is that months or years down the road, despite any protections that may be in place, “there still could be malpractice litigation,” Hoffman underscores.

Meanwhile, states are continuing to issue immunity provisions. New York and Illinois have granted immunity to care providers with the exception of gross negligence.3,4 “While this is not an elimination of potential liability, it is a material raising of the bar, and makes it considerably more difficult for malpractice plaintiffs to prevail,” Waxman says.

The overriding question in all of this is to what degree the public health crisis will be taken into account when malpractice litigation is filed months or years from now. “One of the things that we won’t know for some time is whether the unfortunate but foreseeable health outcomes will result in a corresponding spike of litigation,” Waxman says. “You would like to think that the answer is no.”

There are many well-intentioned efforts to protect ED providers, but none offer absolute immunity. “The argument would be that there can’t be, because there are certain acts that should never be immune for a lawsuit,” Waxman says. Another unknown is how courts will interpret any of these orders or waivers. The New York executive order states there is absolute immunity (no liability) for lack of charting due to the crisis. But it is unclear what this really means in terms of legal protection. “You start from the premise that the best ammunition any malpractice defendant is going to have in any case is well-reasoned documentation, done at the time the care was provided,” Waxman explains.

Current circumstances in EDs may prevent careful charting. For example, a lawsuit might allege the plaintiff waited too long to be moved to the intensive care unit (ICU). The ED chart does not say there were no ICU beds available, does not indicate that there was a tremendous backlog of patients in the ED at the time, and does not mention the lack of available personal protective equipment that prevented a proper exam. “If that’s not charted, while you may not be liable for not making an appropriate entry in the chart, it’s not going to help you in the malpractice case where the issue is whether the care complied with the governing standard of care,” Waxman offers.

Other patients could allege delays happened because ED providers were overly focused on COVID-19 patients. Plaintiff attorneys are narrowly focused on the care one individual patient received. “The demands on the institution at that time are not really their concern,” Waxman says.

A stroke patient who does not receive tissue plasminogen activator because of a long wait for evaluation is a good example. “Generally speaking, a provider who is flooded with COVID-19 emergencies is not immune from criticism coming from a non-COVID-19 patient,” Waxman says.

The bottom line is that none of the legal protections for ED care are foolproof. “The hope is that the goodwill that currently extends to the care providers will still be there by the time these cases come into fruition,” Waxman adds. “There is no way to know until the litigation comes.”

REFERENCES

  1. Hoffman S, Goodman RA, Stier DD. Law, liability, and public health emergencies. Disaster Med Public Health Prep 2009;3:117-125.
  2. Hoffman S. Responders’ responsibility: Liability and immunity in public health emergencies. Published 2006.
  3. Gov. Andrew Cuomo. Executive Order No. 202.10. Continuing temporary suspension and modification of laws relating to the disaster emergency. March 23, 2020.
  4. Illinois.gov. Executive order in response to COVID-19, April 1, 2020.