I recently wrote on the immunity health care providers enjoy now based on care provided related to the current COVID-19 pandemic. Even without the immunity law, I would be very cautious bringing any such claim. My sense is juries will only feel more sympathetic toward doctors and other health care providers given their front line status in this “war” against the COVID-19 virus. Proving causation will also be a major impediment to COVID-19 malpractice cases.
You see, it’s not just a matter of convincing a jury that a health care provider committed malpractice. The injured person (or in the case of a death, the decedent’s family) must also prove that the malpractice caused the harm. Put another way – an injured person must prove that, had the malpractice not happened, the harm wouldn’t have happened.
That is often tricky in normal circumstances. But with a novel virus no one has dealt with before, this can be impossible.
Imagine for a moment a person comes to an ER with signs suggesting she has COVID-19. Imagine further that the person by all accounts should be tested for it, but for some reason she is not. She leaves, only to return two days later much worse. A test at that time uncovers the virus and the hospital admits the patient. Unfortunately, even with appropriate care, the patient dies.
Assuming that the reason for not testing the patient is so egregious that jurors are willing to fault the hospital or doctor for failing to provide the test, how can anyone say, knowing what we know now, whether the patient would have survived even had the test been done and the patient diagnosed with COVID-19 two days earlier?
It’s possible that in two years we’ll know a lot more about this virus, how to treat it, and whether a delay in testing someone could be proven to have made a difference to that person’s outcome.
But as it stands, that appears to me to be one more big hurdle in any of these cases.
Read more about how coronavirus is affecting cases of injured folks: Coronavirus Highlights The Difficulty Our Society Has With Preventing The Spread Of Infections, Proving Malpractice…
