Avoid Lawsuits During the COVID-19 Pandemic

This transcript has been edited for clarity and brevity.

HealthLeaders: What types of lawsuits can happen internally in hospitals and health systems during the COVID-19 pandemic?

Dr. Nick Oberheiden: What I see on the front line … [are] medical providers … [filing] lawsuits against hospitals and operators of hospitals for not providing appropriate PPE, and exposing these frontline workers to the virus.

HL: Do these types of lawsuits hold up in court?

Oberheiden: The unsafe workplace only works from a litigation perspective if there was a duty of care by the employer that was not met as interpreted during a pandemic—which is a very specialized situation—and the employee, the doctor, the nurse, or the medical assistant, suffered harm and injury. To show that the lack of PPE appropriately caused this person to have suffered, or received the virus, is a little bit of a challenge.

HL: What types of external lawsuits could hospitals and health systems face?

Oberheiden: The external threat for hospitals could be that personal injury attorneys will represent patients, or if a patient passed away, for personal injury and wrongful death claims. If they feel they can show that the hospital and its operators were simply not prepared, not organized, and were negligent … in how they treated the patients, that would be more of a classic malpractice case.

And ironically, whereas the [internal lawsuit] includes the doctors as potential plaintiffs against hospitals, the [external lawsuit] sees doctors, nurses, and others as potential defendants with hospitals and hospital owners for medical malpractice.

HL: Will patients who bring lawsuits against hospitals and health systems be able to prove that negligence or harm was done?

Oberheiden: If the patient did die in the emergency room, and they can show some form of discrimination because another patient was considered a priority … these cases could have some merits. However, I do not think that these cases would ever make it to trial.

That duty of care is defined [by] what would a reasonable person would do in this situation, and this is where the pandemic comes in. A reasonable person at the time of this pandemic can only do so much. While the pandemic itself is not an affirmative defense … I do think it is very critical how courts would define what duty of care existed. That is, the duty of care inside an emergency room during an unprecedented pandemic. And that, I think, will kick out the vast majority of cases.

There are a number of states where discussions occurred whether or not to provide statutory immunity to frontline workers, and the latest of these states is Pennsylvania. But [states] declined to do so because of their inability to define recklessness and negligence during a pandemic. Legislators were not willing to give doctors a statutory protection in the sense that no matter what they did, and no matter how they performed, and no matter what they decided, they are immune. So that failed in every state that I’m aware of where this was discussed.

HL: What steps can hospital and health system CEOs take to avoid lawsuits during the pandemic?

Oberheiden: I have advised hospitals … to have written policies that essentially are based on two elements: transparency with your staff and having protocols in place of how you can maximize everyone’s safety and protection.

You can’t guarantee protection, but these written policies and protocols [would clarify] to whom to report if [staff] feel [they have] developed fever, to whom to report and what would happen [to staff] if [they] have the virus? Those things, in my opinion, are what everyone can use as demonstrated efforts to be compliant.

In my “defense point of view,” these policies would have an enormous impact to show … there’s no more that these entities or individuals could do than by addressing the problem and finding the best solutions under the circumstances.

What you don’t have in writing doesn’t exist. These written policies and protocols, addressing all imaginable scenarios for your staff, to be transparent and to keep them protected, that is the very best a healthcare entity can do during the pandemic. And I think it will have a major impact to show that there was absolutely no negligence.