Covid-19 Lawsuits: Crushing Impact on Nursing Homes & Long Term Care Facilities
Covid-19 lawsuits are having a dramatic impact on Physicians, Nursing Homes & Long Term Care Facilities.
Third-party liability lawsuits stemming from medical errors are the third leading cause of death in the United States, according to plaintiff's lawyers.
In a COVID-19-related lawsuit, we want to help you understand how having the right expert on your legal team can make or break your case.
The average plaintiff's verdict in medical malpractice lawsuits has grown steadily for the last half-decade. As a result, many wondered if the COVID-19 pandemic could upend that trend. In general, the outpouring of support for healthcare workers might create a "healthcare heroes" halo effect that could change jurors' minds when considering verdict size. Further, would that potential halo-effect carry over to physicians or be reserved for nurses and caregivers at the perceived worker level.
This effect may be offset by a short memory span and the social and political disparity that has been exacerbated during this pandemic. While recent verdicts have shown mixed results, it's unclear what impact these varying decisions will have on future cases.
For example, one of the most dramatic changes observed is the increase in lawsuits against long-term care centers and nursing homes.
However, early predictions of potentially lower verdicts did not come about. Instead, national data shows the number of $10 million-plus medical malpractice verdicts has steadily increased since 2014, reaching a 20-year high in 2020.
Covid-19 Related Claims, Settlements & Verdicts.
The COVID-19 virus health crisis has been disruptive and puzzling for most of us, to say the least. It ranks famously as the "All-time most difficult healthcare event to pin down." Yet, while it has transformed elements of healthcare providers' and patients' claims experience, it has changed little about other features, such as the ongoing increase in average verdict size due to the greater recognition for increasingly complex forms of care.
Covid-19 has had a profound impact on the legal landscape.
According to the Center for Disease Control and Prevention, there have been 82 million cases of Covid-19 in the United States and recently passed the threshold of more than 1,000,000 deaths.
In the United States, there have been several high-profile lawsuits and settlements related to the pandemic. Several notable settlements have been reached in cases involving wrongful death, medical malpractice, and business interruption claims. Hospitals and long-term care facilities have paid out some of the largest settlements.
There have also been a number of verdicts handed down in Covid-related lawsuits. In one notable case, a jury in New York awarded $3 million to the family of a man who died after being denied treatment at a hospital.
As the pandemic continues to wreak havoc, it is likely that we will see even more lawsuits and settlements in the months and years to come.
A key factor contributing to the rise in Covid-related malpractice suits has been patients feeling they have no say in their own healthcare decisions. In addition, some infections necessitate certain precautions, most commonly those against physical contact between patients and caregivers. Finally, distancing protocols can leave patients and loved ones feeling isolated, leading to worsened health outcomes because of reduced access to adequate medical care.
As the Covid-19 virus spread across the United States, the Advisory Committee on Immunization Practices (ACIP) recommended that health care professionals be provided a temporary period of legal immunity for any outdated or harmful information about vaccines. This deliberation stems from ACIP's eagerness to increase vaccination rates and provide adequate protection against potential infection during future seasonal flu campaigns.
PREP Act Immunity Requirements.
A federal attempt to create immunity for treatment given during the Covid-19 pandemic failed to pass in September 2020. However, the Public Readiness and Emergency Preparedness (PREP) Act [1] is being tested as a source of immunity in lawsuits filed against physicians and long-term care facilities for pandemic-era care.
The law was expected to raise the standard that plaintiffs must reach to prove negligence for care rendered during the pandemic, acknowledging that caregivers were operating within dire circumstances.
Though not statistically significant, several case studies have shown that the PREP Act is underreported in many regions across the United States. For example, a recent survey of the PREP Act within the state of California shows that nearly two-thirds (63%) of physicians surveyed were completely unaware of the PREP Act. Furthermore, only 50% had ever heard about it at all.
Some individuals who have died or suffered severe injuries due to a covered countermeasure are eligible for compensation through the Countermeasures Injury Compensation Program. In addition, individuals who used a covered countermeasure and contracted an infection, experienced a hypersensitivity reaction, or sustained other injuries may be eligible for compensation under the CICP.
There are very few actual instances where the Public Readiness and Emergency Preparedness (PREP) Act has been applied. For example, in Maglioli v. Andover Subacute Rehabilitation Center I, [2] two families filed for negligence, wrongful death, and medical malpractice when a nursing home's neglect allegedly led to the patients' deaths from COVID-19.
Three defense teams removed their lawsuits because the field preempted these types of lawsuits by claiming there was no violation of Health Care Provider Immunization Act statutes in either suit based on the PREP Act, which they asserted "preempts all claims against health care providers whether arising before, at the time of, or after administration of a vaccine" within specific guidelines.[3].
Covid-19 Liability Shield Laws Are Expiring.
At least 38 states passed Covid-19 liability shields in 2020 and 2021. They broadly immunized businesses and other entities from lawsuits blaming them for a person's coronavirus exposure, injury, or even death. These laws were expected to raise the standard that plaintiffs must reach to prove negligence for care rendered during the pandemic, acknowledging that caregivers were operating within dire circumstances.
The laws typically allowed cases to proceed only if those suing could show reckless conduct, gross negligence, or meet a similar standard. Many of those laws created provisional liability limits that are set to expire soon or already have. As supporters attempt to get them extended, they are often facing waning enthusiasm in legislative responses to the pandemic.
However, the level of physician protection becomes less clear when considering allegations like a doctor's failure to identify contraindications in patients who had adverse reactions to vaccination.
Even though it is generally accepted that physicians should never assume that they will receive protection under the PREP Act, it's also clear that physicians may have some state protections, which may or may not transfer to federal court.
Since there is currently no national standard for defining physicians' liability cases, the PREP Act often neglects to address the issues.
Covid-19 Liability Strategies for Physicians & Long Term Care Facilities.
Physicians are the go-to for patients who need help. They can be called upon to make life-or-death decisions while under insurance providers or hospital administration pressure.
Physicians and medical care teams in Long Term Care facilities would greatly benefit from detailed timelines showing how a particular situation developed and how it was handled both by themselves and others involved.
A good strategy is to keep or compile detailed documentation, specifically for Covid-related events, such as when their office, clinic, or facility started requiring PPE or when other emergencies were declared in their area. This way, they will have adequate data to develop better protocols and analyze just how prepared they are during a state of emergency and what kind of situations they might need to face in the future so that they are thoroughly and better ready for such things!
References:
[1] PREP Act https://aspr.hhs.gov/legal/PREPact/Pages/default.aspx
[2] Estate of Maglioli v. Andover SubAcute Rehab Center I , Nos. 20-6605 & 20-6985, 2020 WL 4671091 (D.N.J. Aug. 12, 2020).
[3] Parker v. St. Lawrence County Public. Health Department, 102 A.D. 3d 140, 954 N.Y.S.2d 259 (3d Dep't App. Div. 2012).
MedLegalPro recently strengthened its position as a leader in medical-legal consulting with the addition of Gregory M. Schwaid, DO, MPH, FAOCOPM (preventive medicine, occupational medicine and Covid-19 pandemic expert) to their growing roster of medical experts.
All cases are assigned to an experienced case manager who monitors and works with attorneys or insurers directly to ensure they get the knowledgeable case support, opinion reports, and comprehensive communication essential to successful litigation outcomes.
MedLegalPro provides medical forensic expert consulting across multiple specialties including Nursing Homes | Wound Care | Nurse & Medical Management | Long Term Care | Assisted Living | Memory Care | Compliance | Gerontology | Infection Control | Facility Quality Assurance and other specialties.
For more information on this and other medical malpractice & negligence case support specialists please email Tracy Liberatore JD, PA, Founder & CEO
Med Legal Pro Click here to Contact Us via email or Call 844-Med Legl (633-5345)
