Posted by Bill Sandweg on 17 August 2020.
To the list of the many, many damaging effects of the Coronavirus pandemic, you can add that it makes medical malpractice cases more difficult. In order to successfully pursue a medical malpractice claim, a patient must prove that the health care provider fell below the “standard of care” applicable to that provider under the circumstances. Of course, that is not the end of the proof needed. The patient must also prove that he or she was damaged by the breach of the standard of care and that the injury would not have occurred in the absence of the breach. This is where the Coronavirus comes in.
The proof that an injury was caused by a breach of the standard of care is called, logically enough, “causation.” It is always one of the most difficult elements of proof in a malpractice case. Health care providers always say two things when they are sued: (1) “I did not do anything wrong.”; (2) “Whatever I did or didn’t do had no effect on you. Whatever bad thing happened to you had either already happened by the time I became involved or was going to happen no matter what.” Number (2) is the causation defense. Since medicine is the complicated endeavor that it is, the causation defense frequently carries the day for the defendant provider.
For example, in a missed cancer diagnosis case, and I have seen a lot of those, the patient’s claim is that, had the doctor diagnosed and treated my cancer in a timely manner, my life would have been extended or even saved. The doctor, of course, denies that he or she missed a cancer they should not have missed but argues, in addition, that the patient’s cancer was so advanced or so aggressive that the delay in diagnosis, if there was one, made no difference in the outcome; the patient was going to die anyway. Juries know little about cancer except that it is a really bad thing. Although this is changing over time as medicine advances, they expect cancer patients to die. No one argues that the doctor caused the cancer so juries are not too receptive to the idea that earlier treatment would have saved the patient’s life.
The Coronavirus makes all this worse. If you have been following the news about the virus, you know that it has many degrees of severity. Some victims don’t even know they have it and have no symptoms. Some victims have mild symptoms. Some victims become so seriously ill that they must be placed on a ventilator, a treatment that is very often unsuccessful and which often precedes the victim’s death.
In addition to the varying levels of severity, the Coronavirus can play havoc all over the body. Some victims develop pneumonia and respiratory problems. Some victims get rashes. Some victims experience multi-organ failure. Some victims have immune system overloads that cause the immune system to attack the victim’s body. Some victims have strokes or pulmonary emboli resulting from excessive blood clotting caused by the virus. Some victims have cognitive changes that some doctors are calling “coronavirus fog.” Some patients become comatose for a variety of reasons. Some patients experience heart damage. Some patients fall victim to other bacterial or viral infections.
When combined with the fact that it is now believed that many Coronavirus patients are never diagnosed with the disease, the virus gives health care providers another excuse for why their patient suffered an injury: “It was the Coronavirus.” Perhaps as we learn more about the virus, we can defeat this argument but, for the time being, it is just another way health care providers can send their injured patients away with nothing.