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Some plaintiffs’ attorneys are vowing not to take cases related to care provided for COVID-19. Other attorneys may be eager to take those claims.
Risk managers are bracing for what some fear will be a wave of malpractice claims related to COVID-19 care. However, some attorneys say they will not take these cases, arguing the treatment standard is unclear, and substandard care claims cannot be substantiated.
One attorney refusing to take COVID-19 claims is Jack E. McGehee, JD, founding partner at McGehee, Chang, Landgraf, Feiler in Houston. The firm focuses on representing plaintiffs in medical malpractice cases.
His experience in suing hospitals across the country has made him familiar with their risk management programs. McGehee says he is sympathetic to their position in the pandemic.
“For the first time in my life, I found myself aligning with what the healthcare providers are going through. We are fighting this enemy, and I know better than anybody that there is no standard of care for this pandemic in our hospitals,” he says. “I’m acknowledging that and I’m telling all my brethren that we need to be true to our word and bring lawsuits only when there is a clear departure from the standard of care. Since there is no standard of care for this, we have no business suing hospitals for COVID-19 cases.”
That does not mean that patients were not damaged during the pandemic, McGehee says. The question is how to prove that healthcare providers should have been expected to do more.
“There are going to be mistakes made and people will be hurt from those mistakes, but the question is whether those mistakes were made recklessly and whether they were made negligently,” McGehee says. “The definition of ‘negligence’ is a departure from what a reasonable person would do in the same or similar circumstances. We’re in uncharted territory and I don’t think there is a place for lawsuits in that territory.”
McGehee was joined in the moratorium by Charles Brown, JD, managing partner with Brown Christie Green in Houston. Both firms posted notices on their websites and encouraged other plaintiffs’ attorneys to join them in refusing COVID-19 claims. The response from other law firms has been positive, McGehee says.
“We would like to pioneer the idea that we should stand down against these folks that we’re used to suing. We only sue them when they’re wrong, and I have more healthcare providers on my side serving as my experts than I do on the other side that we’re chasing,” McGehee says. “The community needs to recognize that we’re not enemies in this and share the same kindred spirit.”
Some attorneys have replied with skepticism about the moratorium, but McGehee says their criticism always goes beyond the boundaries of what he supports regarding COVID-19.
“When I have fellow trial lawyers describe situations where the moratorium is bad, they’re describing something that is a grossly negligent, callous disregard that goes beyond what I’m calling for in the moratorium,” he says. “If healthcare providers all start writing prescriptions for hydroxychloroquine, I would have trouble with that. But as far as the standard of care cases that I have spent a career pioneering, those cases don’t belong there when they are based on COVID-19 care.”
McGehee says he does not expect a huge wave of COVID-19 lawsuits against healthcare providers. Some plaintiffs’ attorneys will be tempted, particularly the younger ones who tend to lower their screening criteria when offered a case that involves death or a sensational aspect, he says. But McGehee expects most attorneys will realize the challenge of providing a deviation from the standard of care and will be reluctant to fund COVID-19 claims.
“That means hiring experts first, and that’s not cheap,” he says. “If you just do a cost analysis, that argues against a wave of lawsuits being filed over COVID-19.”
For risk managers who do face COVID-19 claims, McGehee offers strong advice: Do not automatically cave to COVID-19 claims just because they seem intimidating.
“I know a great many risk managers, and my message to them is to do nothing different, and continue to be motivated by the prospect that you’re trying to help people,” he says. “You’re going to find problems, and you should own those problems to do better for the next patient. If you do that, I think you’re going to be safe in the civil justice system.”
Financial Disclosure: Author Greg Freeman, Editor Jill Drachenberg, Editor Jonathan Springston, Editorial Group Manager Leslie Coplin, Accreditations Director Amy Johnson, MSN, RN, CPN, and Nurse Planner Maureen Archambault report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study. Consulting Editor Arnold Mackles, MD, MBA, LHRM, discloses that he is an author and advisory board member for The Sullivan Group and that he is owner, stockholder, presenter, author, and consultant for Innovative Healthcare Compliance Group.