Medical Malpractice in the Age of Coronavirus

A spike in emergency room visits and hospitalizations, the rise of temporary overflow hospitals, overworked and potentially sick medical providers, are only a few elements of the “new normal” in the healthcare arena during this coronavirus pandemic. As we all walk through uncharted waters with ever changing rules and protective measures, practitioners are making last resort decisions which, for most, will mean the difference between life and death. Unfortunately, for many healthcare workers, these “hail Mary” choices will bring along not only the dreaded pre-outcome anxiety, but the lingering possibility of an avalanche of malpractice complaints.

Across the nation, medical groups and associations are lobbying for federal and state legislation providing our frontline workers with immunity against malpractice lawsuits resulting from treatment provided, not only to Covid-19 patients, but to any patient who has been admitted to our crisis-stricken hospitals. As a response, many states have issued orders granting different forms of protection to medical professionals. In New York, for instance, the Governor issued an order protecting licensed providers who are working to support the State’s response to COVID-19. These individuals will not be liable for any injury or death sustained directly as a result of their negligence. They will be held liable, however, for injuries or death caused by gross negligence.

In Florida, immunity from civil liability has been expressly limited, both by the state and federal governments, to healthcare professionals providing voluntary services during the national emergency. The Florida Good Samaritan Act protects those practitioners who gratuitously and in good faith render emergency care or treatment in direct response to emergency situations related to a public health emergency. At the federal level, the Coronavirus Aid, Relief, and Economic Security Act (''CARES Act”), grants immunity to volunteer medical providers rendering services within the scope of their licenses, in a good faith belief that the individual being treated is in need of health care services.

As it can be seen, both legislations are limited to voluntary services provided in good faith, and do not cover criminal or willful acts, nor cases of “gross negligence”, which are defined in Florida as “conduct that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct”.

We have yet to see a federal or state order granting immunity to all our frontline workers who are risking their lives on a daily basis to fight this pandemic. But even without such measures, if we had to guess, healthcare providers could potentially find some comfort within our current legal framework, as medical malpractice actions in Florida are the result of those ignoring the prevailing “professional standard of care”. Pursuant to the law, the prevailing professional standard of care for a given health care provider is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

Clearly, the world as we knew it has changed in the last few months and the circumstances surrounding medical services are not the same. As we witness this pandemic unfold, all expectations regarding privacy, available resources, and quality of care are changing by the minute. We can only hope that, when this is all said and done, our frontline heroes will be provided with the same grace and attention they have shown all of us during this time of need.

At Cohen Legal Group, we will keep up with any new legislation or regulation regarding this matter that could affect our clients and friends. We also remain available for you to answer any questions so that you may continue to focus on managing the many aspects involving this emergency.  In the meantime, if you have any questions or concerns, we remain open to assist medical providers in concentrating on treating their patients.  Please feel free to call us at (954) 617-6500.