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.

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