COVID-19 and malpractice lawsuits: What the future may hold

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.

Early pandemic

At medical malpractice insurer EmPRO, we have been keeping a close eye on the pandemic because global health events have the potential to expose both insured clients and insurers alike to staggering liabilities. Thankfully in New York state, where EmPRO is headquartered, the governor and the legislature moved swiftly to enact emergency measures that shielded health care professionals from the worst liabilities. Had they not done so, the pandemic had the potential to lead to the proposal of new, more stringent regulations and policies, which in turn could have resulted in increased premiums.

New York was hit incredibly hard with COVID-19 cases right from the start, with the first confirmed case on March 1, 2020. The legislature and the governor produced the Emergency Disaster Treatment Protection Act (EDTPA), which extended broad immunity to health care providers and facilities.

Around the state, 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 EDTPA 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.

Medical malpractice attorney Tom Benvenuto, J.D., of Benvenuto & Slattery says this was a critical decision that empowered health care providers to make every effort to save patients without fear of legal action. “The immunity the EDTPA provided to New York health care professionals was essential to the state’s response and handling of the pandemic because it enabled physicians to pursue necessary measures to care for patients that may have otherwise been construed as extraordinary under otherwise normal circumstances,” he said.

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.

Essentially, the government extended liability protection to medical equipment and PPE manufacturers. With this protection in place, manufacturers such as General Motors, Ford, Fitbit and Procter & Gamble were able to quickly launch production lines or repurpose existing ones to make medical equipment such as respirators, ventilators, face shields and masks.

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, when New York’s infection rate was less than 1%, the legislature reduced the scope of the EDTPA 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. New York has returned to business as usual for malpractice regulations.

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.

According to Benvenuto, the industry must keep a close watch on how federal courts approach challenges to PREP Act immunities that may be filed. “Although the immunities appear to be ironclad, and cases would likely be dismissed by the court in light of same, any suit that survives an initial motion to dismiss could provide plaintiffs in each state a playbook to filing and maintaining a similar case,” he said.

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.

Bruce C. Shulan is president and CEO of EmPRO. For more than 30 years, he has served as a senior executive, board member, consultant and attorney to the insurance industry.