Lawsuits Related to Delays in Treatment

On March 18, 2020, the Centers for Medicare and Medicaid Services issued recommendations advising healthcare providers to delay all elective surgeries as well as non-essential medical, surgical, and dental procedures. This will undoubtedly result in lawsuits related to delayed surgery where patients allege that their outcome was worsened by the delay.

Delaying elective surgeries made sense, of course. Part of the reason to delay the surgeries was to reduce the risk of COVID-19 infection and spread, as well as reducing the burden on a strained hospital system.

While lawsuits may eventually be filed for delayed surgeries, it is questionable as to whether a plaintiff could be successful given the circumstances. As mentioned before, favorable public support for healthcare practitioners during this crisis is likely to make lawsuits like this less successful. This doesn’t mean that we won’t be seeing them, however.

Lawsuits by Healthcare Practitioners Related to COVID-19

What we may be seeing in the future is lawsuits by doctors, nurses, and other healthcare professionals who were on the front lines of the COVID-19 battle and who were not provided with adequate personal protective equipment (PPE). Stories of PPE shortages have been rampant during this time. It is not inconceivable that lawsuits will ensue from healthcare practitioners who are sickened or die as a result of a lack of PPE. We may see lawsuits against hospitals or health systems by, or on behalf of, healthcare practitioners.

A recent, tragic, news story in New York involving a director of an emergency department who committed suicide after treating COVID patients and surviving the infection herself raises the question of whether hospitals could be liable for not addressing the mental and emotional toll on practitioners. On the other hand, as mentioned earlier, clinicians are practicing under almost wartime situations and it is difficult, if not impossible, to address the mental toll on practitioners in the midst of the crisis. 

HIPAA Violations

Another topic that is likely to rear its head after the immediate crisis is over is the issue of potential HIPAA violations. The Office for Civil Rights (OCR) of the Health and Human Services (HHS) Agency is the enforcing agency for HIPAA.

“We are empowering medical providers to serve patients where they are during this national public health emergency,” said OCR Director Roger Severino in a statement on the HHS website.

OCR has provided guidance on its website as to how patient information may be shared. In the second week of April 2020, OCR announced that it would exercise its enforcement discretion and would not impose penalties for violations of the HIPAA Rules in connection with the “good faith participation in the operation of COVID-19 testing sites.” The enforcement discretion was made retroactive to March 13, 2020, and was designed to support community-based testing sites such as pharmacy chains, and mobile-, drive-through-, or walk-up testing sites.