MEDICAL MALPRACTICE AND PERSONAL INJURY CLAIMS FOR COVID-19
As New York begins to reopen in phases, questions have started to arise about the potential legal liability of hospitals, nursing homes, long-term care facilities, businesses and others that may not have taken adequate steps to protect workers, customers and patients from contracting COVID-19 or that failed to provide them with adequate medical treatment.
Medical Malpractice and Negligent Treatment Cases
On April 6, 2020, two weeks after enacting a “PAUSE” order for the COVID-19 pandemic, Governor Cuomo and the Legislature enacted another law that shields hospitals and health care workers from liability for the negligent treatment of patients during the pandemic – regardless of whether their treatment was for coronavirus or a completely different medical condition.
The “Emergency Disaster Treatment Protection Act,” immunizes doctors, nurses, hospitals medical offices, nursing homes, and many other health care workers and facilities from being sued for negligence, medical malpractice or criminal liability in connection with treatment provided during the declared COVID-19 state of emergency.
However, the Act’s protections are not unlimited. It requires that medical care be provided “in good faith,” and it does not protect health care providers from liability for (1) willful or intentional criminal misconduct; (2) reckless misconduct; (3) gross negligence; or (4) intentional infliction of harm to patients. On the other hand, the Act specifically says that staffing or supply shortages do not meet any of those requirements. As a result, health care providers cannot be sued for ordinary negligence or for inadequate staffing or medical supplies for medical treatment during the state of emergency. A number of New York state legislators are calling for a repeal of the Act because it is so restrictive.
To prove “gross negligence” under the Act, the injured person will probably have to show that the health care provider was “so careless as to show complete disregard (reckless indifference) to the rights and safety of others.” This means that many residents, patients and their families could be left without recourse even when there are serious concerns about the treatment they received or the decisions made by some facilities. Of course, whether any specific situation could give rise to a successful lawsuit would depend on the individual facts of the case.
Business Liability to Employee and Customers
On a related front, many businesses are eager to reopen as federal, state and local governments start to relax closure orders. However, as business reopen, they must also address the hazards COVID-19 poses to their employees and their customers.
As we’ve written about at length on our blog (www.greyandgrey.com/blog), most “essential workers” should and probably will be covered by workers’ compensation should they become ill at work. However, it remains unclear what coverage will be afforded to “non-essential” workers, or what the standard will be for a business’s liability to its customers.
At a minimum, businesses must be prepared to demonstrate that their corporate policy is consistent with official recommendations from the Centers for Disease Control (CDC). Employers have a legal responsibility to provide a hazard-free workplace, and this responsibility extends to protection from COVID-19 infection in the office. Legal obligations include communicating best prevention practices in the office, restricting ill employees’ return to work, and general OSHA compliance for workplace health and safety.
The CDC Guidelines are available here:
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
OSHA Guidelines are available here: https://www.osha.gov/Publications/OSHA3990.pdf
While employers cannot be sued for personal injury by an employee (they are shielded by from this kind of liability by the Workers’ Compensation Law), they can be sued for negligence by their customers.
Some cases have already been filed against cruise ships and meat packing plants where people are tightly packed together, increasing exposure and transmission of the virus. In the case of Carnival Cruise Lines, where thousands of cruise-goers were confined on a ship for more than a week, the plaintiffs allege that the company put them at risk by disregarding outbreaks in February and starting other trips in March, resulting in passengers and crew getting sick.
In most claims against businesses for COVID-19 exposure and illness, proving that exposure at that location was the source of the infection may prove to be a significant challenge. In addition to showing that the business failed to take proper precautions, the plaintiff will also be asked to show that exposure at that location was the likely source of their illness. This is consistent with the general rule for a negligence case, which is that the plaintiff must prove that the defendant (1) had a duty to exercise reasonable care; (2) did not satisfy that duty; (3) that the defendant’s failure was a cause of the plaintiff’s injury; and (4) damages (an injury).