Posted by Bill Sandweg on 15 June 2020.
The Covid-19 pandemic has upended many aspects of our individual lives and the economic life of our country as well. We will be adjusting to its effects for many years to come. Some businesses are looking to use the emergency created by the pandemic to get legislators at the state and national levels to give them something that is on their perennial wish list: immunity from suit.
Nursing homes, hospitals and doctors want immunity from suit. Although they are claiming they need it because of the pandemic, they don’t want it to be limited to what happens because of the pandemic. They want their immunity to be as broad as possible. They also don’t want it to go away when the emergency ends and things return to normal. They want it to last forever.
As someone who has been involved in malpractice litigation for over 40 years, I know how hard it is already for a patient or a patient’s family to win one of these suits. Even without more protection, doctors and hospitals win 85-90% of cases tried throughout the country. In order to prevail, a patient must already prove that the health care provider did not act as a reasonable and prudent healthcare provider would have in the same or similar circumstances. This means that, when there is a crisis and doctors must change the way they provide treatment, the system already protects them, as long as they continue to act reasonably. Only healthcare providers who do not act reasonably under the circumstances facing them in the crisis can be held liable. In other words, the system already takes into account if there is a crisis and gives healthcare providers extra protection because of it.
As noted, this is not the first time the healthcare industry has sought special treatment not given to other businesses and individuals. They have been asking for protection for as long as I have been practicing and have had some notable successes. Some states have already given significant protections to the health care industry and called it “tort reform.”
In some states, there are caps on the amounts patients or their families can recover. For example, California passed a $250,000 cap on non-economic damages in response to another “crisis” over 45 years ago. California provides a good lesson in what happens when legislators succumb to a “crisis” and enact this or other types of protection for the health care industry. The industry is not going to let its protections be lost under any circumstances. “Crisis” over? No matter, according to the industry. The protections are needed now more than ever. Protections did not produce the benefits promised by the industry? No matter. Things would have been even worse without them. $250,000 in 1975 dollars has only the buying power of $50,000 in today’s dollars? No matter. We must hold the line in order to protect the public. In spite of the erosion of buying power during those 45 years, the medical industry has successfully fought to keep the limit from changing.
Other states have passed special laws to protect the medical industry. Some laws have changed what patients must prove in order to make a recovery. Others have limited who can testify in a malpractice case to make it more difficult for patients to find expert witnesses to support them. Still other states have changed the rules to make sure juries know that some or all of the patient’s medical bills have been paid by insurance in the correct belief that this makes the jury less likely to find for the patient.
There should also be a distinction here between nursing homes on the one hand and hospitals and doctors on the other. I have seen very little in the various news reports to suggest that doctors and hospitals did anything other than respond to the pandemic in the most heroic way possible. By contrast, the news reports are full of reports of nursing homes that flouted even the most basic precautions and routine hygiene procedures and allowed their patients to drop like flies, all the while playing hide the ball with the families of their patients. Nursing homes have a great deal to answer for in connection with their actions during the pandemic. Regardless of what protections are given to doctors and hospitals, nursing homes deserve none. They have failed in their sacred trust to their patients and the families that entrusted their loved ones to them.