Can I File a Medical Malpractice Lawsuit for Treatment Related to COVID-19?

Across the country, emergency department health care providers have been working around the clock, often putting their own health and safety on the line to help meet the enormous medical needs of the COVID-19 pandemic. In addition to the overwhelming toll that the Coronavirus is having on the health care system, we may expect to see a surge in medical malpractice claims in the wake of the crisis. It is likely that the majority of COVID-19-related claims will be filed by patients who believe that the hospital or the health care provider failed to diagnose their condition or did not meet the standard to care.

However, COVID-19-related medical malpractice lawsuits may be particularly challenging to win for several reasons, including the more flexible definition of standard of care and the overwhelming amount of public support that health care providers continue to receive. Patients who wish to pursue a medical malpractice lawsuit are urged to contact an experienced medical malpractice lawyer.

Standard of Care
Under normal circumstances, standard of care is defined as the level of care that a health care professional with similar training and experience would provide under similar circumstances in the same community. However, these are hardly normal circumstances. Hospitals all over the country continue to struggle with a shortage of resources, such as personal protective equipment, life-saving ventilators, and front-line health care providers in areas that are particularly hard-hit.

In addition, health care providers and hospitals cannot be held responsible for the lack of testing kits that currently exist. As a result, it is likely that the standard of care will be much more flexible. For example, health care providers who delay surgeries to treat COVID-19 patients will be judged according to the current circumstances, including the fact that federal and state governments have issued emergency orders restricting non-urgent procedures.

A certain degree of flexibility surrounding the standard of care does not mean that doctors, nurses, and other health care professionals will get a free pass. Blatant errors, including preventable misdiagnoses, prescription errors, or an obvious failure to properly treat a patient, are grounds for a medical malpractice lawsuit. However, a doctor who delays a non-emergent knee surgery to treat another patient who has COVID-19 is not breaching the standard of care under the current circumstances.

Immunity Issues
In hard-hit areas, such as New York City, all licensed health care providers who work to support the state’s COVID-19 efforts are being granted temporary immunity.

Discoverability of Third-Party Litigation Financing

In litigation-funding arrangements, an investor advances money to a party—usually a plaintiff—to pay lawsuit expenses. In exchange, the borrower agrees to give the investor a portion of his proceeds from the litigation. Traditionally, the funder is guaranteed a portion of any awarded damages, including fees, judgments or settlements.

In a prior issue of Pro Te: Solutio, our colleague Kari Sutherland chipped away at the notion that litigation funding, which has traditionally been illegal, 1 has any benefit to our legal system. 2 Nevertheless, litigation funding continues to be big business and is growing rapidly. That is perhaps because even if the funding is illegal, it does not provide the opposing party with the right to have the lawsuit dismissed. In other words, the illegal funding does not “poison” the litigation tree. One recent estimate is that litigation funding worldwide is a $10 billion industry—$5 billion of which is here in the United States. 3

While litigation funding is available in single cases, it is common for an investor to fund an entire portfolio of claims held by a single law firm, especially in class actions and multi-district litigation. It is therefore safe to assume that these funding arrangements are increasingly present in pharmaceutical and medical device cases.

Third-party litigation funding is a largely unregulated industry. It is laden with as-yet-unexplored potential for abuse, ethical violations and conflicts of interest. Most notably, the interests of lawyers who are funded and their clients may differ, but clients seldom receive the independent legal advice they would need to waive a conflict. 4 Indisputably, third-party funding changes litigation. The question remains: how? And the only way to answer that question is through increased transparency during discovery.

10 Must-Watch Medical Malpractice Plaintiff Verdicts

Courts across the country are slowly showing signs of resuming normal business, but with civil jury trials still at least a few weeks away Courtroom View Network’s online trial video library is the only way for trial attorneys to keep their skills sharp by watching gavel-to-gavel on-demand video of real-world, high stakes civil trials.

CVN focuses heavily on practice areas that frequently see cases go to trial (check previous lists featuring trucking, premises liability, asbestos and traumatic brain injury trials), and this week we’re featuring 10 of the most compelling medical malpractice trials in our archive that ended in plaintiff verdicts or mid-trial settlements.

What Happens at Mediation in a Personal Injury Case?

After the lawsuit is filed, after you’ve had your deposition taken, and after you are examined by the defense doctor, the next time in a personal injury case that you, as the client, have to be involved, is the Mediation.

The American Bar Association defines Mediation as “a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute.” Essentially, it’s a fancy word for a settlement conference.

After your attorney has properly worked up your case, and the defense has properly worked up their case, both sides will usually attempt to settle the case prior to trial. The most often used tool to settle a case, is Mediation.

Scroll to Top
Skip to content