With coronavirus-related lawsuits popping up around the country, two small medical malpractice firms in Houston are taking a different stance from many of their competitors.

Brown, Christie & Green and McGehee, Chang, Landgraf, Feiler announced this week they will not sue doctors, hospitals or nursing homes over their good-faith efforts in treating patients with the coronavirus.

"Given the unprecedented circumstances surrounding COVID-19, we believe that under the circumstances, assuming good-faith efforts to treat, that we can neither prove a breach of the standard of care nor causation. We do not believe that there is a true standard of care in light of the uniqueness of the situation," said Charles Brown, managing partner of Brown Christie, which has seven lawyers.

In the joint announcement, five-lawyer McGehee Chang noted that hospitals are "doing their best to write new policies, try new protocols, and manage the pandemic," and as they develop responses, may make mistakes.

"Some mistakes will hurt people. Some mistakes will look obvious in retrospect. This problem is unprecedented until we find a solution," the firm said.

Texas Lawyer caught up with Brown, and with Jack McGehee, a founding partner in McGehee Chang, about their decision to step away from a potentially lucrative area in medical malpractice litigation.

Their answers have been edited lightly for clarity and style.

Why did both of your firms decide against bringing medical malpractice litigation against doctors, hospitals or nursing homes related to COVID-19 care?

Jack McGehee: Charles and I focus on representing brain-damaged children and we sue hospitals for horrible mistakes that cause horrible damages. I think we both would be disingenuous [if we held] hospitals to a standard of care that does not exist.

Charles Brown: I'll broaden that to also include physicians or nursing homes, even. In a world where we don't yet truly have treatments available, it is difficult to assign a standard of care.

McGehee: There are still some things that happen in the environment that do have a clear standard of care that we don't exactly talk about, [for example], failing to provide sufficient food or hydration in a nursing home, but when it comes to providing [a certain standard of care] to COVID-19 patients, there just isn't.

Medical malpractice work is what your firms do. Aren't you eliminating a potential area of work and revenue with this decision?

McGehee: Yes, we are. But I think that in my heart of hearts what we do is good for society … The next patient in line will receive better care because of our cases. With COVID-19, I think the hospitals are equally interested in protecting the next in line. Our interests are similar. So as their revenue is getting slashed and they are fighting a common enemy, I come to them not as an adversary this time. I come under the peace tent.

Brown: I agree that we are arguably giving up potential cases. But I believe that it is more important that those of us who handle medical malpractice cases acknowledge the reality of what is facing the health care community and our country at this unique time. President [George W.] Bush recently said that we are more than just partisan combatants. Similarly, even though my firm litigates against hospitals and nursing homes, at times like this we need to remember that we all have the best interests of the patients and the residents as our ultimate goal.

Were all of the partners in your firms on board with this choice?

McGehee: I have a dictatorship over here, so yes.

Brown: It was a brief discussion. There's just only so much we can do. If there's no standard of care, there's no standard of care, [so] we don't take these cases.

What litigation would you take related to the coronavirus pandemic?

McGehee: I would emasculate a meat packing plant that refused to test employees and put them in a hostile environment, but that's not a health care issue. I haven't had that call yet, but if I do, I would take that call. To summarize Charles' and my position, I think with respect to health care providers, we are spotting good-faith mistakes. We aren't using a microscope to judge their decisions today … but if you take it out of a hospital and put it in big business, then all bets are off.

Brown: Candidly, we only handle medical malpractice, so at this point in time, [even] if it is directly related to COVID-19, that wouldn't be an area we'd practice in.

Do you think other firms will take the same stance on suing health care providers over  standard of care related to the coronavirus?

McGehee: When Charles, who is an opinion leader in the country, makes such a public stand on this issue, I think others will follow. I think it's a great discussion point for trial lawyers.

How are you an opinion leader, Charles?

Brown: Jack is very nice to me. It's important to get this out there.

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