Here’s a formula for the trial bar’s wet dream.
A high frequency, high severity condition where no consensus standards are fully accepted or in place.
High frequency means the “triggering event” is common. COVID-19: Check.
High severity means the damages are significant. COVID-19: Check.
A pandemic causing hospitalization, disability and death satisfies both conditions.
“If you or a family member has become seriously ill or someone has died from coronavirus due to someone else’s negligence or fault, you should seek legal advice to see if you have a coronavirus malpractice lawsuit.” Says Brown, Moore & Associates PLCC. Yep, a real advertisement.
As we’ve written earlier, if you are taking care of a COVID-19 patient using established “countermeasures”, you likely have qualified immunity from litigation (under the PREP Act) for anything other than wrongful conduct.
What if your patient GETS COVID-19 while treating him for another condition? This will be even more salient as the country slowly opens up, and more routine care for conditions other than COVID-19 is delivered. You know, the usual stuff.
What happens then?
Did you take reasonable precautions to prevent this from happening? Did you follow the standard of care? How can you be sure the patient was not incubating a pre-symptomatic case of COVID-19 when you took him to the operating room and the trauma of surgery caused a much more horrific post-op course?
These are the questions a plaintiff’s attorney will ask in your deposition.
The playbook on how to prevent COVID-19 is being written as I write this. And it will go through many revisions before all is said and done.
How much, if any, testing for COVID-19 via PCR should be done before surgery? What about timing? How about antibody testing? Any blood markers to see who might be at extra risk? Do we treat those over age 65 differently? Diabetics? I can keep going.
What makes this virus more legally problematic is the variation in incubation period. Some have suggested it can even be 3 weeks, even if the window from exposure to clinical disease is shorter most of the time.
Plus, there are reports of patients testing positive, then negative, then positive again.
How to manage?
One way would be to create a national fund (and process) that addresses COVID-19 illness. If you have a beef, take it up with the fund. That would first require federal legislation. Whether it would be able to sidestep state tort law remains to be seen.
Next, all patients about to undergo a procedure should sign a consent form, similar to the consent for the actual procedure, acknowledging that there is a pandemic in the background. (Of course, they already know that.) They understand there is a risk that they already have pre-symptomatic COVID-19, may get COVID-19, or have a more difficult clinical post-op course if they develop COVID-19. Such a template is available to Medical Justice members. Just email us at firstname.lastname@example.org.
Not a member, but want access to this template? Click here to learn how to gain access to this resource – and many other critical guidelines specific to COVID-19.
We have other thoughts to stay out of the crosshairs and will be presenting them over the next several weeks.
What do you think? Let us know your thoughts in the comments below.
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Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.