How COVID-19 may impact malpractice lawsuits

Since COVID-19 arrived in the United States, health care providers have been working tirelessly to address every aspect of the pandemic. The public saw how frontline workers were making sacrifices day in and day out to keep as many people healthy as possible. But even as the media focused on this heroic work, behind the scenes COVID-19 was prompting significant changes to malpractice laws and regulations at the state and federal levels.

Providers should be aware of what has happened and of the changes that may occur in coming months and years. Hospitals filled with patients with COVID-19 had to bring in nurses from out of state, bring health care providers out of retirement, build temporary facilities to provide COVID-19 care and enlist doctors, nurses, physician assistants and others to provide services out of title — meaning outside their usual purview of care.

The Emergency Disaster Treatment Protection Act granted them immunity from liability in the diagnosis and treatment of patients with COVID-19, as well as other patients whose treatment was affected by a facility’s response to the pandemic. Before doctors knew precisely how to care for patients with COVID-19, many frontline health care providers had reasonable concerns that experimental treatments could not only expose them to the disease but also lawsuits. The EDTPA helped alleviate those fears.

The federal government issued its own legislation on protections for frontline workers, facilities and even personal protective equipment (PPE). The Public Readiness and Emergency Preparedness (PREP) Act provides liability immunity related to the manufacture, testing, development and — importantly for medical providers — use of medical countermeasures against pandemics and other public health emergencies.

The PREP Act also covered health care facilities that were using these countermeasures. For example, in the event of a PPE shortage — as was seen across the country due to a global shortage — a facility may invoke the immunity from liability if a patient claimed that they contracted COVID-19 at that facility while the facility was reallocating what PPE they had available to them.

In the trenches

In the midst of the pandemic, medical malpractice insurers and the attorneys working with them began planning for a potential tidal wave of lawsuits related to COVID-19, given the potential for morbidity that the diagnosis carried for a significant portion of the population. This would have put a tremendous strain on insurers across the country.

However, the industry so far has seen relatively few cases. In fact, medical malpractice lawsuit filings were down during the pandemic. This was due, in part, to many states implementing a hiatus on filing lawsuits when lockdown restrictions began. Because there are statutes of limitations on filing cases, there may be more COVID-19-based lawsuit filings when those statutes approach their expiration dates. Plaintiffs may file cases in order to buy time hoping that there will be a change in how the courts interpret and apply the immunities. However, in many cases, this situation is still more than a year away.

Returning to normal

In August 2020, the scope of the EDTPA was reduced to cover only patients with COVID-19, eliminating those tangentially affected by a facility’s COVID-19 care for others. Furthermore, the statute was repealed, thereby ending the immunity for providers treating patients with COVID-19 after April 6, 2021.

Although it has been amended a number of times, the federal PREP Act is still in place, and malpractice insurers, courts and health care professionals are paying close attention to any potential legal aftershocks.

In the end, the COVID-19 pandemic did not bring about a sea change in medical malpractice regulations or policies. States expanded immunities where and when they had to, and when conditions improved enough to remove those exemptions, it appears most states have gone back to what worked before. Fortunately, this means premiums have not seen a “COVID-19 spike,” but it remains to be seen if this will hold in the future, especially if the Delta variant or another variant proves lasting or if a new pandemic emerges.

Thanks to Medical Economics, Bruce Shulan and ContemporaryPediatrics.com.