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Can You Sue for Medical Malpractice Due to COVID-19 Exposure?

Written by Berkowitz

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In Connecticut, there have been more than 12,000 confirmed cases of novel coronavirus (COVID-19) infections and more than 550 virus-related deaths as of April 15. According to data from the Institute for Health Metrics and Evaluation, as of April 15, virus-related deaths were expected to peak on April 26 before gradually declining into early June.

While the vast majority of novel coronavirus cases result from exposure at work and in social settings, there have been reported cases of patients contracting COVID-19 in hospitals and other medical facilities as well. For those who are exposed while waiting for or receiving care, is it possible to file a claim for medical malpractice?

In Connecticut, the answer is generally going to be, “No.”

Executive Order Protects Connecticut Health Care Providers against Medical Malpractice Claims Related to COVID-19

This is because Governor Lamont issued an executive order (Executive Order No. 7V) on April 7, 2020, that immunizes Connecticut health care providers from COVID-19-related medical malpractice liability in most cases. In pertinent part, the executive order states:

“Notwithstanding any provision of the Connecticut General Statutes or any other state law, including the common law, or any associated regulations, rules, policies, or procedures, any health care professional or health care facility shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response, including but not limited to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic and which resulted in the damages at issue . . . .”

Under the executive order, “health care professionals” include doctors, nurses, and other individual care providers who are compensated or who are working on a volunteer basis, including those who are retired or who have inactive licenses but have been approved to provide treatment during the COVID-19 crisis. “Health care facilities” include hospitals, clinics, nursing homes, field hospitals, and other facilities designated for temporary use as treatment centers during the pandemic.

Governor Lamont’s executive order covers essentially all healthcare-related acts and omissions, excluding only, “acts or omissions that constitute a crime, fraud, malice, gross negligence, [or] willful misconduct.”

FAQs: Health Care Provider Immunity during the COVID-19 Crisis

Q: Does the immunity provided under Executive Order No. 7V apply to medical malpractice committed before the Executive Order was issued?

Yes, to the extent that pre-existing medical malpractice claims related to COVID-19 exposure. In describing the time period to which it applies, Executive Order No. 7V states:

“The immunity conferred by this order applies to acts or omissions subject to this order occurring at any time during the public health and civil preparedness emergency declared on March 10, 2020, including any period of extension or renewal, including acts or omissions occurring prior to the issuance of this order attributable to the COVID-19 response effort.”

Q: How long will health care providers in Connecticut be entitled to immunity from medical malpractice lawsuits related to COVID-19 exposure?

As stated in the quote above, the immunity granted to health care providers under Executive Order No. 7V applies for the duration of the state of emergency in Connecticut. To be clear, however, the executive order does not only grant temporary immunity during the emergency period. If your hospital, doctor, or other health care facility or health care professional makes a mistake that results in COVID-19 exposure during the crisis, you will be permanently barred from filing a medical malpractice claim.

Q: Will Connecticut health care facilities and health care professionals eventually face liability for negligently exposing patients to COVID-19?

Presumably yes, although the practical implications of these remain to be determined. Since Executive Order No. 7V applies only during the COVID-19 state of emergency, it is possible that individuals who are exposed after the emergency period ends could have viable medical malpractice claims. However, Governor Lamont is issuing new executive orders in response to the COVID-19 crisis on a near-daily basis, and the state legislature is enacting laws in response to the crisis as well. So, at this point, it is too early to tell when or if patients who are exposed to COVID-19 in the future may be able to pursue claims for just compensation.

Q: Are other states providing health care immunity commensurate with the immunity that Connecticut is providing?

Yes, several other states – including New York – have adopted similar protections through the issuance of executive orders or the enactment of legislation. As reported by Law.com on April 8, “Legislators [and governors] in New York, New Jersey, and Michigan have issued executive orders or passed legislation in the past weeks that protect doctors, nurses, and other hospital staff from lawsuits. Proposed federal legislation would do the same in certain circumstances.”

Additionally, the language contained in the federal Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) provides liability protection for volunteer health care providers in Connecticut and other states. Section 3215 of the CARES Act states:

“Except [in cases of grossly negligent, reckless, or willful misconduct], a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency with respect to COVID–19 . . . if—(1) the professional is providing health care services in response to such public health emergency, as a volunteer; and (2) the act or omission occurs—(A) in the court of providing health care services; (B) in the health care professional’s capacity as a volunteer; (C) in the course o providing health care services [for which the professional is licensed]; and (D) in a good faith belief that the individual being treated is in need of health care services.”

Q: Can I still seek financial compensation for medical mistakes made during the crisis that does not relate to COVID-19 exposure?

Yes. Executive Order No. 7V and Section 3215 of the CARES Act only apply to health care services provided in response to the COVID-19 outbreak. They do not provide blanket immunity for all forms of medical malpractice. If you seek treatment for any condition other than COVID-19 exposure and your health care provider was negligent in diagnosing or treating your condition, then you can still file a medical malpractice claim in Connecticut.

Q: What if I am employed by a hospital and I was exposed to COVID-19 at work?

If you work for a hospital and you were exposed to COVID-19 within the scope of your employment, Executive Order 7V and Section 3215 of the CARES Act do not apply to you. Hospitals, clinics, nursing homes, and other employers have a duty to reasonably protect their employees from COVID-19 exposure. If your employer failed to meet this duty, then it is possible that you could have a claim for liability.

However, in the majority of circumstances, employees are likely to be limited to filing claims for workers’ compensation benefits or taking paid time off under the Families First Coronavirus Response Act (FFCRA). Among various other provisions, the FFCRA extends the Family and Medical Leave Act’s protections to more employees and affords the right to paid, job-protected leave to eligible employees who are diagnosed with COVID-19.

Q: What should I do if I believe that I have a medical malpractice claim during the COVID-19 crisis?

If you believe that you may have a medical malpractice claim for something other than COVID-19 exposure, you should discuss your situation with an attorney. Our firm is continuing to operate at full capacity during the novel coronavirus pandemic, and our attorneys can determine if you have a claim for damages. If you do, we can file a claim on your behalf, we can negotiate with your health care provider’s medical malpractice insurer, and we can take your case to court if necessary. While the COVID-19 crisis has impacted the Connecticut courts as well, it remains extremely important to file your claim on time, and you do not want to wait any longer than necessary to file your claim for financial compensation.

Q: Can I sue another business for exposing me to COVID-19?

If you sought treatment for COVID-19 and your doctor either misdiagnosed your condition or failed to provide necessary treatment, your doctor is immune from liability, but the business that exposed you to COVID-19 might not be. As we discussed above with regard to employees of health care providers, if you were exposed to the novel coronavirus at work, you may be entitled to workers’ compensation benefits or paid time off under the FFCRA.

If you were exposed to another business, such as a grocery store or big-box retailer, you would need to be able to prove negligence in order to secure a financial recovery. Proving negligence requires an examination of the business’s efforts to prevent the spread of the virus at the time you were infected. In all cases, you will need to be able to prove the source of your infection in order to pursue a claim for payment. Aside from health care provider immunity, for many people, this is likely to present the biggest hurdle to seeking financial compensation based on exposure to COVID-19.

Discuss Your Legal Rights with a Malpractice Lawyer

If you would like more information about seeking financial compensation for an illness or injury that you believe may be the result of medical malpractice, we encourage you to get in touch. To schedule a remote consultation with one of our malpractice lawyers, please call us directly or inquire online today.