Houston Lawyers Announce They Will Not Pursue COVID-19 Malpractice Lawsuits
A number of Houston medical malpractice attorneys have banded together to say that they will not file lawsuits against health care workers who have made “good faith efforts” to treat COVID-19 patients. This is after several states (but not Texas) have passed legislation placing a moratorium on medical malpractice lawsuits stemming from COVID-19.
The situation is complicated. In places like New York City, where hospitals were overrun by the number of COVID-19 cases, medical professionals were forced to triage patients. This, of course, could become the breeding ground of an avalanche of medical malpractice lawsuits. New York, New Jersey, Michigan, and Illinois have all passed temporary legislation that places a moratorium on COVID-19-related medical malpractice lawsuits.
A Breach in the Prevailing Standard of Care
Medical malpractice attorneys know that every time you file a lawsuit against a doctor alleged to have committed some form of negligence, you have to compare what they did to the prevailing standard of care in the industry. Primary care physicians and specialists tend to have a higher standard of care than doctors that work in the ER or first responders.
The reason should be obvious. ER doctors and first responders are required to make split-second decisions. Those decisions may not always be the correct ones, but if penalized every negative medical outcome, it would grind both the courts and the health care system to a halt.
To place this in legal terms, the standard of care for doctors dealing with a flood of patients must necessarily be lower than the standard of care expected of doctors during non-pandemic times. In other words, the fact that the pandemic is creating chaos for our hospitals should be a consideration when evaluating the standard of care.
Are All COVID-19 Lawsuits Banned?
No. At least in New York State, a plaintiff can file a lawsuit against a doctor, but they have to allege and prove gross negligence. When does gross negligence happen? The doctor would have to commit some form of wilful misconduct. As an example, showing up for work drunk would be an example of gross negligence. Removing the wrong bodily organ would be an example of gross negligence. Accidentally removing the wrong limb would be an example of gross negligence.
In other words, you can file a lawsuit against a doctor whose misconduct was so egregious that it rose to the standard of wilful misconduct or the action was intentional. To put it a different way, gross negligence should be so obvious that even someone with no medical experience would recognize it as a serious error.
Such lawsuits are rare when it comes to medical malpractice lawsuits, but they do occur. They would almost never occur in the context of emergency medicine. So it’s unlikely that very many lawsuits will make it through the COVID-19 legislation.
Talk to a Houston Medical Malpractice Attorney Today
If you’re wondering whether or not your situation is actionable, call the Houston personal injury attorneys at Livingston & Flowers today and schedule a free case evaluation.
Resource:
benzinga.com/pressreleases/20/05/n16007757/houston-medical-malpractice-lawyers-reject-coronavirus-lawsuits
https://www.livingstonflowerslaw.com/lobbyists-push-to-give-immunity-to-health-care-during-pandemic/
