Medical Malpractice Lawyer Cleveland, OH
As a Cleveland medical malpractice lawyer, my first interest is patient safety. Having reviewed thousands of hospital records and office charts, I frequently see the catastrophic consequences of medical errors and medical mistakes. Legislation has been proposed that will grant immunity to doctors and nurses on the front lines of caring for patients with Coronavirus or COVID-19. As this pandemic wreaks havoc on our nation, it is tempting to grant blanket immunity to healthcare workers. However, granting immunity creates a dangerous precedent, and the proposed immunity legislation is too broadly written.
All Americans owe a debt of gratitude to doctors and nurses who put their own lives at risk in order to care for our loved ones in the face of this viral epidemic. Those healthcare providers are faced with many challenges, including inadequate personal protective equipment (PPE), a lack of ventilators, understaffing and shortages of other precious recourses. Many of these problems could have been avoided by proper planning by hospitals. Almost 20 years ago, the insurance industry reacted to the SARS epidemic by inserting language in most general liability policies that excludes losses caused by bacterial, fungal and viral epidemics. Insurers recognized that the SARS epidemic was not a one-time deal. If insurers recognized this risk, why wouldn’t healthcare professionals?
If the SARS epidemic wasn’t enough notice, there were a series of widely publicized infectious outbreaks, including bird flu, H1N1, Ebola and Zika virus. Despite widespread recognition of this problem and as the world becomes smaller and smaller, American hospitals have failed to properly prepare for microbial outbreaks. They lack planning, preparation and equipment. In addition, because American hospitals are driven by profit (don’t kid yourself, even nonprofit hospitals are driven by profit), there is no attempt to coordinate efforts by designating certain hospitals as infection control centers during these epidemics. Dedicated quarantine hospitals worked very effectively in other countries. Instead, here, each hospital vies for market share and profits by making itself available for infectious disease cases. This propagates the problem by cross-contaminating all hospital staff, patients and visitors. In addition, this inefficient system denies critical medical services from patients suffering from other medical conditions. Elective surgeries and procedures are cancelled across the board. This makes no sense.
Despite clear-cut industry-wide hospital negligence in failing to prepare for this predictable pandemic, hospitals are seeking a free pass through the grant of immunity. Immunity is a slippery slope. Once one special interest is granted immunity for any reason, other special interests will begin to seek immunity as well, pleading their case for cutting corners, being unprepared and making mistakes during an emergency or when providing any service that benefits the public.
A grant of immunity also incentivizes complacency. When hospital administrators and insurers realize that there is no accountability for hospital negligence, there is no incentive to prepare for future epidemics. The American public should find this unacceptable.
In reviewing proposed immunity legislation, it is apparent that this legislation cannot be written without being overbroad. Not only does the proposed legislation provide immunity for healthcare providers who are directly caring for patients critically ill from the Coronavirus, but it also provides protection to the hospital system for its lack of planning and preparation and for providing substandard care to other critically ill patients due to demands on resources by Coronavirus patients.
A grant of immunity is even necessary since Ohio law already protects healthcare workers who care for Coronavirus patients in several ways. First, there is no proven cure for this medical condition, so it would be impossible to prove causation in a medical malpractice action. Likewise, if important equipment, like ventilators are not available, it would be impossible to prove that individual physicians or nurses were negligent. Finally, under Ohio law, a claim for medical negligence, medical malpractice, or nursing negligence requires proof that an individual healthcare provider fell below accepted standards of care. Since the onslaught of Coronavirus patients is unprecedented, and treatment options are limited, the standard of care is ever evolving and not firmly established. In Ohio, healthcare providers are often entitled to a “different methods” jury instruction that provides a defense to actions that are reasonable under the circumstances, though they may differ from treatment provided by another practitioner. In short, it would be impossible to prove a wrongful death claim arising out of a fatality resulting from the Coronavirus. A grant of immunity is simply not necessary.
Finally, a grant of immunity will likely sweep other meritorious claims for medical malpractice under the rug. For example, if a nurse overdoses a patient with a medication by mistake, or a doctor orders the wrong medication or wrong dose, resulting in the patient’s overdose death, those clear acts of medical negligence would be subject to immunity under the proposed legislation. Likewise, if a physician mispositioned a central venous catheter into an artery rather than a vein resulting in a massive stroke while caring for a patient with Coronavirus, the effects of the unnecessary stroke would not be subject to a medical negligence lawsuit due to immunity even if the patient survived Coronavirus.
As a medical malpractice lawyer, I recognize that individual caregivers have been dealt an impossible hand in many situations caused by this current pandemic. That bad hand was dealt in part by their hospital employer that refused to prepare for this predictable outbreak. Hospitals have also maintained unacceptably high rates of hospital-borne infections as well. Infection control needs to be improved. At the same time, other acts of medical negligence and hospital negligence should not be banned from the courtroom.