ED Legal Letter – June 1, 2020
June 1, 2020
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Many Future ED Malpractice Claims Will Need to Survive Gross Negligence Standard
Enacted protections offer emergency department providers some immunity from liability, except for gross negligence and willful and wanton conduct. This leaves plaintiffs’ attorneys with just one option for pursuing a medical negligence case.
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Long-Standing Gross Negligence Standards for ED Malpractice
Some states enacted stringent standards for asserting medical malpractice claims against emergency department providers long before the COVID-19 pandemic. Plaintiff attorneys occasionally argue in medical malpractice cases that gross negligence occurred, but tough state laws can make it hard to prove.
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Hospitals Bracing for Litigation from Infected ED Providers
Hospitals expect plenty of litigation from emergency department (ED) providers who have contracted COVID-19, often while working without adequate personal protective equipment. Read on to see some claims that ED nurses, ED staff, or emergency physicians may bring against hospitals.
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Enforcement Action Likely if Hospital Retaliates Against ED Staff
Some emergency department doctors and nurses allege they were disciplined or fired after complaining about inadequate personal protective equipment, or for refusing to treat COVID-19 patients without N95 masks.
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No ICU Bed? ED Patients ‘Fall into Black Hole’
In terms of malpractice, the main question is going to be: Did the emergency department (ED) patient receive treatment as fast as he or she should have, given the relevant circumstances? EDs in known COVID-19 hotspots with long waits for intensive care unit beds probably will be treated somewhat differently than smaller community EDs, where it was mostly business as usual.
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Delayed Care, Misdiagnoses Still Happening, Regardless of COVID-19 Surges
Just because there are surges of respiratory patients in the emergency department does not mean there are any fewer stroke, heart attack, or septic patients. There will not be fewer lawsuits, either, if any of these patients receive delayed care or are misdiagnosed.
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Psychiatric Patients Pose Unique Legal Risks During Pandemic
If an emergency department is packed with respiratory patients, psychiatric patients could end up boarded for hours or days. This is not good for patients, and creates liability exposure.
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Liability Protection Not Absolute for ED Volunteers
Volunteer emergency department providers should verify their malpractice insurance covers voluntary service. Hospitals should check that volunteer providers are covered under the hospital’s malpractice insurance. Additionally, leaders should look to relevant state law to determine the extent of liability protections related to volunteers.