By Jeffrey N. Catalano
As a devoted medical malpractice attorney who has represented patients over 25 years and a passionate patient safety advocate, I have never believed that healthcare providers should be immune from lawsuits for negligence. To do so would cause a surge of unaccountable medical errors and financially devastated patients. But the times, they are a changin’, and so too has my position during this pandemic.
Massachusetts Gov. Charlie Baker recently signed into law legislation that provides healthcare workers and facilities with immunity from civil liability while they are on the front lines of the Commonwealth’s COVID-19 response. The legislation protects healthcare professionals, including doctors, nurses and emergency medical technicians, as well as certain healthcare facilities from liability and suit when the care that they provide is impacted by the COVID-19 outbreak only during the period of the COVID-19 emergency.
Admittedly, this is very broad language. However, in my personal and professional opinion, this is essential and smart legislation. (Frankly, anything that makes someone “immune” from something sounds really good right now.) Our front-line healthcare providers should not have to deal with the added stress of being sued as they care for COVID-19 patients while also worrying about getting themselves or their family infected.
Absent this law, there would be potential grounds for lawsuits in certain situations. For example, many experienced physicians are being recruited to attend to critical medical conditions far outside their area of expertise. Doctors in training (called residents) are told to do procedures they were never taught with little or no supervision.
As reported in the Wall Street Journal recently, residents at a hospital in New York are falling into despair over crushing workloads to the point of suicidal thoughts. These trainees wrote a letter stating they are “horrified and scared, paralyzed with feelings of helplessness and guilt.” Meanwhile, they cannot decline an assignment without fear of professional repercussions. These young doctors and other good healthcare providers should not be sued for mistakes that may happen when they are attempting in good faith, to the best of their abilities, to save lives.
There are some caveats to my opinion. This law should not be used as an escape hatch to excuse negligence unrelated or only very remotely related to the COVID-19 emergency. And if physicians are going to use the emergency to delay treatment for non-virus related medical problems, they must get the patient’s full written consent to do so (more on that in my next post). Finally, we must be mindful that this is a temporary law. Any shortcuts to training and supervision that take place now cannot persist and lead to bad habits and practices after the emergency is over.
I remain hopeful that once this emergency ends (and it will end), the energy, finances, and resources given to addressing this outbreak can then be dedicated to remediating the silent epidemic that preceded this one – the hundreds of thousands of Americans who die each year from non-virus related preventable medical errors. But until then, we should demonstrate unity here, where there seems to be so much division everywhere else.
Jeff has been selected to the Best Lawyers in America directory for personal injury and product liability litigation (plaintiffs) for six consecutive years (2015-20), and has been designated as one of the Top Rated Lawyers in Medical Malpractice by The Boston Globe and Wall Street Journal. He has been chosen as a New England Super Lawyer each year since 2009.
Todd & Weld COVID-19 Update.