Enacted protections offer emergency department (ED) providers some immunity from liability, except for gross negligence and willful and wanton conduct.1 This leaves plaintiffs’ attorneys with just one option for pursuing a medical negligence case.

“There will inevitably be an increase in allegations that actions or inactions previously considered to be ordinary negligence instead constitute gross negligence,” says Katharine C. Koob, Esq., an associate at Post & Schell in Philadelphia. Koob says examples of conduct that could rise to the level of gross negligence in the ED include:

  • failing to respond in a timely manner to a patient who is coding;
  • administering an incorrect medication to a high-risk patient;
  • failing to adhere to policies and procedures in place to prevent the spread of COVID-19 (e.g., permitting untested potential carriers into the ED despite visitor restrictions). “Plaintiffs’ attorneys will undoubtedly begin to set forth claims for gross negligence to refute and avoid any liability protections put in place,” Koob says.

Some claims are going to assert it was gross negligence for a hospital to be understaffed at a time when a surge of patients is anticipated, Koob predicts. Defense counsel can counter this allegation with proof that hospitals made every effort to appropriately staff the ED.

“Plaintiffs may attempt to argue that the hospital’s actions were reckless and in wanton disregard for the well-being of their anticipated patient population in order to allow their clients’ cases to proceed,” Koob explains.

The definition of gross negligence varies from state to state. “It can range from a slight lack of diligence to conscious disregard for the well-being of others,” says Amy Evans, JD, executive vice president of the liability division at Intercare Insurance.

Allegations of gross negligence, intentional conduct, assault, and battery generally are excluded from professional liability insurance coverage, Evans notes.

Plaintiffs occasionally plead these allegations because it allows for recovery of punitive damages, treble damages, and/or attorneys’ fees. “Talented plaintiff attorneys plead general medical negligence in addition to gross negligence and occasionally assault and battery, depending on the facts,” Evans reports. Pleading gross negligence, she adds, “can also allow certain egregious and potentially prejudicial information into evidence that may otherwise be excluded.”

To defend against gross negligence allegations, ED providers and hospitals will need to show that they were as prepared as possible under the circumstances.

Also, providers must show they followed evolving recommendations of federal and local health authorities. If they can do that, says Evans, “gross negligence claims are going to be very difficult to sustain, let alone prove.”

When a plaintiff attorney pleads gross negligence or intentional conduct, a judge decides whether the claim can proceed through final judgment. “The plaintiff bears the burden of proof with regard to the allegations they assert,” Evans explains.

The defense has two opportunities to challenge whether the plaintiff has met their burden, says Evans:

  • Before trial: The defense can file dispositive motions, such as motions to dismiss or for summary judgment.
  • During trial: The defense can bring motions for directed verdict, arguing to the court there is insufficient evidence to support the plaintiff’s allegations.

“Most courts take allegations of intentional conduct against healthcare providers very seriously,” Evans says. Courts consider sworn statements and testimony from fact witnesses and independent experts, medical records, and licensing board findings, among other evidence.

Evans says cases alleging gross negligence are likely to survive when another healthcare provider involved in the care supports the allegations the plaintiff asserts. Another scenario that could lead to survival is when there are allegations of inappropriate behavior. “It is difficult to obtain dismissal of ‘he said/she said’ types of allegations,” Evans says. “They are generally seen as credibility issues for a jury to decide.”

Regardless of whether a gross negligence claim survives, ED providers still endure the lengthy, costly litigation process. “The ability of a claim to proceed will likely be visited, and revisited, at several points throughout the life of the case,” Koob says.

Claims almost certainly need to proceed through the pleadings stage as well as the lengthy discovery process. All that must play out before a judge will consider dismissing the action based on liability protections created by legislation or executive order. “The judge will undoubtedly want to ensure that all of the relevant information has been gathered before denying the right of a plaintiff to assert a cause of action,” Koob explains.

Some cases will end up dismissed before trial. However, it is likely many judges will determine a jury needs to decide whether the actions at issue rose to the level of “gross negligence.”

“In that scenario, the case will need to be tried to verdict before a healthcare provider benefits from any potential liability protections,” Koob observes. Actions that arguably represent ordinary negligence (e.g., poor clinical judgment or mistake) may be designated as gross negligence. “Cases in which the care rendered falls in a ‘gray area’ will likely result in a determination by a judge that the care could be found to be grossly negligent,” Koob says.

This permits the case to proceed through the legal system and be heard by a jury. Liability protections might ultimately shield the ED provider from a verdict or judgment. “But it may be highly costly and time-consuming to arrive at that final determination,” Koob adds.


  1. American Medical Association. Liability protections for health care professionals during COVID-19. Updated April 8, 2020.