Coronavirus Liability Shields Are a Mistake

Medical errors take the lives of thousands of patients each year; even greater numbers of patients are injured. When hospitals are responsible for causing patient harm, they may attempt to cover it up to avoid being held liable for the harm they caused.

Recently, legislators have been discussing liability shields for hospitals and medical personnel whose patients suffer harm or injury because of COVID-19. States across the country have already enacted their own laws, though no federal law has passed so far.

It must stay that way. Liability shields will almost certainly do more harm than good.

Why liability shields are a bad idea

Legislators have been attempting to sell the idea of liability shields as a way of protecting doctors, saying that immunity would be limited only to COVID-19 patients. Most legislation includes some language about how patients can still sue for “egregious” mistakes or negligence. If a surgeon removes the wrong leg, the patient can still sue.

What happens, then, if a man has a heart attack and dies waiting for care because all the doctors were handling COVID-19 cases? Technically, the man did not die of COVID-19 – but his care was delayed because of COVID-19. Is the hospital immune from a medical malpractice lawsuit because their resources were devoted to caring for coronavirus victims?

Or what if a nurse has been working for 24-hours in the Emergency Room, and misreads a chart because she is suffering from sleep deprivation? Her mistake leads to the death of a patient. In any other scenario, the family could sue for medical malpractice – but if the nurse’s exhaustion is due to round-the-clock care for COVID-19 patients on ventilators, is the hospital liable or not?

While we can appreciate the sacrifice that doctors and nurses make every day during this pandemic,  blanket immunity during the pandemic, or for “pandemic related” errors, is not just. It is simply a way for hospitals to avoid accountability.

What does Maryland say about hospital immunity?

Maryland has a “Good Samaritan Law,” which provides liability to non-medical personnel who provide emergency services. For example: say John Doe is eating in a restaurant and Jane Doe starts to choke. He administers CPR and breaks Jane’s rib. John is immune from a lawsuit, because he was acting like a good Samaritan.

Under the Public Safety Immunity Act, the same premise applies, but this time it protects healthcare workers: any healthcare worker who provides assistance in a “catastrophic health emergency” cannot be held liable “because of exposure to a deadly agent.” Viruses are included in the definition of deadly agents.

However, as of March 5, 2020, the following conditions must be met for a Maryland medical provider to be protected by the Act:

1. “If you are providing normal/routine care for a non-COVID-19 patient, then the immunity of this Act would not apply because that care has no relation to the ‘catastrophic health emergency proclamation’ …. Accordingly, if a patient had COVID-19, but was being treated for a non-COVID-19 condition, this immunity also may not apply.
2. The immunity would apply if a health care provider strictly follows Maryland orders, any Department of Health orders, or any other Maryland established orders. If orders are broad or defer to a health care provider’s professional judgment, a trier of fact may be called upon to determine whether a health care provider was acting in good faith in the time of the emergency.”

This liability, under the Maryland Department of Health’s Amended Directive and Order Regarding Various Healthcare Matters, “does not construe the immunity provisions in Pub. Safety Art. § 14-3A-06 or Health Gen. Art. § 18-907 to apply to a healthcare provider or facility performing non-COVID-19 related procedures or appointments.”

To sum up: under Maryland’s laws and Orders, both families from the examples we listed above would have a claim for wrongful death from medical malpractice. The same might not hold true, however, if a federal law passes which allows a broader reading of the laws.

At Plaxen Adler Muncy, P.A., we are dedicated to protecting our clients. That means holding hospitals and medical personnel accountable when their negligence causes harm. To learn more about our services, or to schedule a free consultation with a Maryland medical malpractice attorney, please call 410-730-7737, or fill out our contact form.