Medical workers in protective clothing move the body of a deceased patient to a refrigerated overflow morgue outside the Wyckoff Heights Medical Center in Brooklyn, New York, on April 3, 2020. Photo: Angus Mordant/Bloomberg

As state and federal legislators push to immunize more health care workers from liability, lawyers who practice in medical malpractice still anticipate lawsuits—but not anytime soon.

Legislators in New York, New Jersey and Michigan have issued executive orders or passed legislation in the past weeks that protect doctors, nurses and other hospital staff from lawsuits. Proposed federal legislation would do the same in certain circumstances.

Lawyers who defend health care workers say the protections are necessary as the conditions under which their clients work have drastically changed, particularly in regions hit hard by the coronavirus. Even with those protections, health care workers are girding for lawsuits.

"Hospitals are going to be preparing for various types of litigation that will result from this," said Jennifer Siegel, a senior associate at King & Spalding in Los Angeles. "Whether the attorneys elect to take a case is a different story. But if you're someone who gets injured or someone who loses a family member and you feel like the physician really did a poor job, people will sue, regardless."

Plaintiffs lawyers, however, fear the moves could leave victims of medical malpractice with little to no recourse, at least in the short term.

"A lot of people are thinking their practices are in danger," said John Hochfelder, a plaintiffs attorney in Briarcliff Manor, New York. The concern, he said, is not an inability to sue on behalf of COVID-19 patients but the length of time the pandemic could last. "And how will it affect garden-variety cases that theoretically aren't barred but, as a practical matter, the healthcare professionals are viewed as heroes now? You don't want to be the one suing heroes."

An 'All-Hands-on-Deck Situation'

Behind the protective measures for health care workers are the emergency circumstances caused by the COVID-19 outbreak. Hospitals inundated with coronavirus cases have forced doctors and nurses to treat patients without wearing proper protective gear, at nontraditional facilities, or in places or specialties in which they are not necessarily licensed.

"It's an all-hands-on-deck situation to provide the requisite care for patient surges," said Seigel, who co-wrote a firm article this year called, "Is Your Hospital Ready for a Pandemic?"

The protective measures do not bar lawyers from filing lawsuits but provide additional legal defenses for doctors on the front lines.

On the state level, New York's legislature introduced a bill to protect health care workers from liability effective March 7 through the end of the COVID-19 emergency declaration. On April 3, Gov. Andrew Cuomo signed the Emergency Disaster Treatment Protection Act as part of the state's fiscal year 2021 enacted budget.

"In this case, the immunity basically means no one can successfully sue a health care provider during this period for medical negligence insofar as it relates to any COVID-19 treatment or diagnosis," Hochfelder said.

On April 1, New Jersey Gov. Phil Murphy signed an executive order that provided broad civil immunity against health care professionals, while also granting the appropriate medical licenses to doctors in foreign countries or with expired licenses.

Michigan Gov. Gretchen Whitmer has issued similar executive orders.

In Florida, the Florida Medical Association, Florida Justice Reform Institute and the Florida Osteopathic Medical Association sent a March 26 letter asking Gov. Ron DeSantis to issue a similar executive order. Thirty-five other organizations, including the Florida Chamber of Commerce and The Doctors Company, have supported the letter.

William Large, president of Florida Justice Reform Institute, said the protections go beyond just the decisions of doctors and nurses. There are practical aspects, he said, such as the shortage of personal protective equipment, or PPE.

"The standard of care is to change that between every single patient," he said. "Now, because of the lack of PPE, you can't necessarily always do that, and the sterilization methods are different. If there were to ever be a lawsuit about doctors not properly changing PPE, it's because of the practical aspect of PPE. PPE is in such high demand and lack of supply that it has created a different standard of care in an emergency like that. If there's a lawsuit about that, health care providers need to be protected."

A potential move by the governor, although limited to Florida, could provide ideas for other states, he said.

There are also measures on the federal level to protect healthcare workers. Under the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, for example, a section titled "Limitation on Liability for Volunteer Health Care Professionals" protects volunteer health care workers from liability.

On March 30, Sen. Ben Sasse, R-Nebraska, also introduced the Facilitating Innovation to Fight Coronavirus Act. The federal bill would limit liability for health care workers who, in treating COVID-19 patients, use a medical device for an unapproved use, practice without a license in a particular area or specialty, or test patients "outside of the premises of standard health care facilities."

"These heroes need a common-sense liability shield, so that they don't have to worry about lawsuits while they're scrambling to save lives," Sasse said in a prepared statement.

Health care workers also have other defenses, such as the Volunteer Protection Act of 1997, which protects volunteer health care workers who are assisting nonprofit and government entities, Siegel said. The Public Readiness and Emergency Preparedness Act, or PREP Act, while not specific to medical malpractice, gives the U.S. Department of Health and Human Services the ability to issue a declaration that provides "broad immunity protections" for health care workers who use "countermeasures to diseases," such as medications or treatments, she said.

Despite a host of defenses, hospitals and health care workers anticipate lawsuits, particularly given that the protective measures exclude incidences of gross negligence or willful misconduct. A case against a doctor who misdiagnosed a patient because of a false COVID-19 test, for example, would have "a strong defense in New York and New Jersey," she said. But a doctor who prescribes a drug that is not designed to treat an illness could face claims of gross negligence, she said.

"Patients and family members are not prohibited from filing these lawsuits," she said, but "it may be more difficult to be successful if the lawsuit is truly related to the COVID-19 outbreak."

Medical Malpractice Lawsuits Are 'Nonstarters'

Hochfelder, author of www.newyorkinjurycasesblog.com, acknowledged that, under the new orders, cases of gross negligence still could go forward. But those claims are rare.

"What's gross negligence? The doctor came in drunk, or something like that. Something really, really outrageous," he said. "Basically, your basic medical malpractice or negligence cases that relate to a COVID-19 diagnosis or treatment during this period are nonstarters."

There are broader implications tied to the protective measures, also. In a statement, the American Association for Justice acknowledged that health care providers were "operating in a dangerous and unprecedented environment without the resources they need" but raised concerns that others are taking advantage of the situation.

"It's unfortunate that insurance companies and their allies are viewing this crisis as an opportunity to strip rights and protections away from those who most need our support," wrote AAJ spokesman Peter Knudsen. "We will continue to advocate on behalf of patients and health care workers and oppose any effort to provide unnecessarily broad immunity."

For lawyers who bring medical malpractice lawsuits, patients being treated for the coronavirus aren't the only ones impacted, Hochfelder said. Lawyers are unlikely to bring cases that involve other illnesses and injuries, particularly since the U.S. Centers for Medicare & Medicaid Services recommended last month to delay all nonessential and elective medical, surgical and dental procedures. Hospitals, meanwhile, are flooded with coronavirus patients.

It's also not a good time to sue a doctor, Hochfelder said.

"The climate has changed drastically and, in part, it's related to this and the view we all take of health care workers right now," he said. "There's going to be a lot of changes we can't anticipate now, and one of them is that the climate of pro-health care provider you see now may be well be extended for some period of time. Some medical malpractice lawyers I know are concerned about that."