The coronavirus pandemic is unsettling to all of us. I have been pleasantly surprised with the reaction from our community (particularly Washington State) to the significant restrictions placed on our normal day to day lives to support efforts to curb the spread of the disease. If there is a silver lining, it seems to be an increased civic responsibility many of us are feeling and acting consistently with.

During this time, I have also considered the health care continuing to be provided in our State. Not only care provided related to the coronavirus, but also the regular care we all need despite the coronavirus. And, in providing that care, I cannot reasonably predict there will stop being significant errors made, with significant resulting harm and death.

Will those claims be affected by this pandemic we are all experiencing? Put another way: will juries view the care provided during this time differently? If so, how?

Certainly, as a human being who attempts to have empathy for everyone, there is empathy for the health care workers, many of whom are at the front lines of this, working longer hours in a riskier health environment. In so doing, if one of them makes a serious error and causes harm or death, how will that care be measured?

The standard of care varies for changing circumstances of the care

Fortunately, the drafters of the current laws governing medical malpractice in Washington accounted for that in the definition of the standard of care owed by medical professionals to patients. To be held responsible for harm, the patient must prove to the jury that the health care provider in question:

 failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances

That last clause – acting in the same or similar circumstances – will help a jury put in context the care in question. My sense is, in defending claims arising from care during this time, attorneys for defendant health care providers will accentuate this point. It is akin to a situation where someone provides emergency assistance to someone in need, and in so doing inadvertently causes harm. 

For situations like that, we have what’s called a Good Samaritan law (RCW 4.24.300) which essentially states that if someone is providing medical or emergency assistance for no pay, then that person can’t be sued for causing harm unless they do something way out of bounds (the legal terms are “gross negligence” or “willful or wanton misconduct”).

If harm occurs in one of these heightened, stressful situations, it will absolutely be relevant to whether or not a jury is likely to conclude that malpractice occurred. And I would presume folks sitting on a jury will view such care with the empathy I described above. That makes success for the patient victim that much more difficult, and understandably so.

Defendants will probably try to use the pandemic to defend poor care unrelated to the pandemic

I can also see a scenario in which care provided during this time constitutes malpractice, and has little to nothing to do with the current pandemic. In such situations, I can also see defendants and their attorneys placing an increased emphasis on the anxiety we are all experiencing now. That will also, unfortunately, play into our evaluation of and ability to take cases arising during this period of time.

Although it remains our hope that we are put out of business – that malpractice stops occurring – the reality is significant, life threatening errors will continue into the foreseeable future (coronavirus or not). When we evaluate claims arising from this period of time, we will certainly be thinking about the circumstances within which the care was given.