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Can You Sue for COVID-19 Misdiagnosis?

The COVID-19 pandemic took the country by surprise and has been attributed to the deaths of more than 900,000 Americans as of February 2022. In the early days of the pandemic, there was so much unknown about the virus that people were in the dark about the infection. It was not clear how the virus was spread, how it impacted people, and when it could be deadly. Even years later, there are a lot of unknowns because of how the virus can mutate and impact different people in different ways.

There are a lot of people who may have suspected they had COVID without ever being diagnosed. Other patients may be diagnosed with COVID when they were really suffering from some other medical condition. Unfortunately, it is not vastly uncommon for doctors to make a mistake in the way they diagnose and treat patients. A COVID-19 misdiagnosis could result in harm caused by unnecessary medical procedures or by failing to treat a more pressing condition. 

Medical malpractice lawsuits are important for injury victims and their families because they provide compensation for the costs of medical care, loss of income, and pain and suffering. Another important benefit of filing a medical malpractice claim is that it can actually improve medical care by calling out negligent practices and forcing hospitals to improve care for all patients. If you have any questions about a COVID-19 misdiagnosis, contact our medical malpractice law firm for help.

Misdiagnosis and Medical Malpractice

A misdiagnosis is an incorrect diagnosis of a medical illness, disease, or medical condition. A misdiagnosis can be dangerous for several reasons. Misdiagnosing a condition can result in delayed treatment for a serious disease. At the same time, diagnosing the patient with the wrong condition can lead to unnecessary treatment that causes injury or harm. 

A misdiagnosis does not involve a doctor evaluating a patient to narrow down the possible diagnosis for the patient. Instead, the doctor makes a medical diagnosis for the wrong condition. This is a failure of the doctor to follow the standards of care in treating a patient. When the doctor deviates from medical standards and causes injury to the patient, the doctor can be liable for medical malpractice

A medical misdiagnosis can involve any type of medical condition, including anything from a common cold to a cancer diagnosis. According to a study in the Journal of Patient Safety, it is estimated that 400,000 people in the U.S. die every year because of medical errors, including delayed diagnosis and misdiagnosis. According to a study from Johns Hopkins, medical errors are the 3rd leading cause of death in the U.S., after heart disease and cancer.   

Before the COVID-19 pandemic, researchers with Johns Hopkins University classified some of the most common misdiagnoses doctors make. The researchers identified 15 conditions in 3 primary categories that make up a significant portion of serious misdiagnosis-related injuries. The “Big Three” diagnostic errors include:  

  • Cancer misdiagnosis (37.8%)
  • Vascular event errors (22.8%)
  • Infection diagnostic errors (13.5%)

Since 2020, with the coronavirus quickly spreading across the country, a lot of patients have reported flu-like symptoms that were consistent with the developing COVID-19 virus. However, a lot of patients had atypical symptoms, no symptoms at all, or got conflicting information from the news and medical industry. There may be a number of patients who were misdiagnosed with COVID-19, leading to unnecessary injury and harm. 

Diagnosing COVID-19

Diagnosing a patient with COVID-19 most often involves a nasal swab test but there are multiple ways to test a patient for the presence of COVID-19. However, in the early days of the pandemic, testing was hard to come by. Hospitals had limited resources for testing people and people without severe symptoms were told to stay home. This means that thousands of people likely had COVID-19, even those with serious injuries, and were never tested or diagnosed.    

According to the Centers for Disease Control and Prevention (CDC), the first test for COVID-19 was released in February 2020, known as the CDC 2019-Novel Coronavirus Real-Time RT-PCR Diagnostic Panel. In July 2020, a multiplex assay test was developed that gave results for the presence of SARS-CoV-2, influenza A, and influenza B nucleic acid in a test sample. 

Other tests could show the presence of COVID antibodies even if the patient was no longer showing symptoms of the condition. However, over time, the level of antibodies can dissipate. A few months later, the patient may show no evidence of ever having COVID-19. Between limited testing and dissipation of diagnostic evidence over time, it may be impossible to know how many people were never diagnosed with COVID-19. 

Who Should Be Tested for COVID-19?

According to the CDC, people who have been exposed to someone with COVID-19 do not need to get tested if they do not have symptoms, when they have tested positive within the past 3 months, and recovered, without any new symptoms. However, these people can still be contagious, even without symptoms. The CDC reports the following people should get tested: 

  • People who have symptoms of COVID-19.
  • People who have come into close contact with someone with COVID-19 should be tested to check for infection at least 5 days after they last had close contact with someone with COVID-19. The date of the last close contact is considered day 0.
  • People who are not up to date with their COVID-19 vaccines who are prioritized for expanded community screening for COVID-19.
  • People regardless of vaccination status who have been asked or referred to get testing by their school, workplace, healthcare provider, state, tribal, local, or territorial health department.

Unfortunately for patients who are looking for clarity, not all tests have the same level of accuracy. Even the PCR lab tests can deliver incorrect results. According to a 2021 study, within 0 to 12 days of symptom onset, the home antigen tests correctly identified 78.9% of people who had the virus and 97.1% of people who did not have the virus. This means that more than 20% of the people who were tested at home as positive for COVID-19 did not have the virus. 

To make the issue more confusing, there was a difference in the accuracy of different types or brands of at-home COVID tests. The FDA has even issued a recall for multiple types of COVID-19 tests due to a risk of false results. In 2021, the FDA recalled over 280,000 Empowered Diagnostic, LLC CovClear antigen tests because the tests were never authorized or approved by the FDA.  

Between February 2020 and February 2022, there have been more than 90 recalls for COVID-19-related medical device recalls, including recalls for: 

  • E25Bio COVID-19 Direct Antigen Rapid Test; E25Bio COVID-19 DART Kit
  • ImmunoPass, COVID-19 Neutralizing Antibody Test, NAB 900-60
  • Ellume COVID-19 Home Test
  • Innova COVID-19 Self-Test Kit
  • Celltrion DiaTrust COVID-19 Ag Rapid Test

Signs and Symptoms of COVID-19

A medical diagnosis cannot be made by an at-home test. You need a medical professional to make a medical diagnosis. Doctors use their extensive training, education, and experience to evaluate patients to make a diagnosis. Information that can go into diagnosing a patient may include: 

  • Signs and symptoms
  • Physical examinations
  • Diagnostic tests
  • Patient history 
  • Referrals and consultations

For COVID-19, the signs and symptoms of the virus can present in different ways in different patients. In general, the virus was most harmful in patients with other serious medical conditions. However, even patients with multiple comorbidities sometimes showed no serious effects of the disease. Symptoms generally appear within 2 days to 14 days after exposure. Depending on the individual, possible signs and symptoms of COVID-19 could include: 

  • Fever or chills
  • Cough
  • Shortness of breath or difficulty breathing
  • Fatigue
  • Muscle or body aches
  • Headache
  • New loss of taste or smell
  • Sore throat
  • Congestion or runny nose
  • Nausea or vomiting
  • Diarrhea

These symptoms could resolve on their own or they could lead to serious illness, emergency medical treatment, or death. Patients with severe underlying conditions and older adults are generally at greater risk of developing serious complications. People at greater risk may include those with certain medical conditions, including: 

  • Cancer
  • Chronic kidney disease
  • Chronic liver disease
  • Chronic lung disease
  • Dementia
  • Diabetes
  • Down syndrome
  • Heart conditions
  • HIV infection
  • Immunocompromised states
  • Mental health conditions
  • Overweight and obesity
  • Pregnancy
  • Sickle cell disease
  • Current or former smokers
  • Organ transplant recipients
  • Stroke
  • Substance use disorders
  • Tuberculosis

Long-Term Effects or Long COVID

Some people who get COVID experience post-COVID problems, even months after they are initially infected. Some children have experienced multisystem inflammatory syndrome (MIS). MIS may cause parts of the body to become inflamed, swollen, or develop tissue damage. Multiorgan effects can impact the heart, lungs, kidneys, skin, and brain function. 

Long COVID can result in long-term fatigue, headaches, insomnia, muscle and joint pain, and trouble concentrating, or “brain fog.” The Department of Health and Human Services (HHS) has even recognized long COVID as a disability under the ADA. “A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities.”

COVID-19 Treatment and Failure to Treat the Condition

A proper diagnosis is important to any medical condition in order to properly treat the condition. There are limited treatment options for patients with serious COVID-19. There is no cure but the FDA has approved one antiviral drug to treat COVID-19 under a limited time frame. Remdesivir is generally prescribed for patients who are hospitalized with COVID and have a higher risk of serious illness or need supplemental oxygen. 

The FDA has also authorized other drugs for certain patients, including Paxlovid, molnupiravir, and baricitinib. However, these drugs are generally only prescribed for certain patients under the right conditions. Some other treatments are only given soon after the symptoms appear and may not be effective once a patient is hospitalized with more serious health conditions. 

For patients with mild conditions, treatment may simply involve staying at home to avoid spreading the virus to others. Supporting care at home may include pain relievers, cough medicine, maintaining fluid intake, and rest. Talk to your doctor about treatment options for your situation.

Limited Legal Options for COVID-19 Negligence

Under normal circumstances, doctors are held accountable for negligence when the injury victim files a medical malpractice lawsuit. If the doctor’s negligence caused an injury, then the injury victim could recover damages for losses associated with the misdiagnosis. Unfortunately, many state lawmakers sided with the healthcare industry to provide broader protections for any injuries or death related to COVID-19. 

The American Medical Association (AMA), Medical Professional Liability Association, and even the Secretary of Health and Human Services sought state help to provide civil immunity for medical liability involving COVID-19 claims. As a result, most states took action to protect health care facilities, even when they were engaged in negligent care and treatment. 

Illinois COVID Immunity Laws

Governor Pritzker of Illinois issued Executive Order 2020-37, which extended immunity to health care professionals and hospitals for any injury or death related to COVID-19. This includes immunity from “civil liability for any injury or death alleged to have been caused by any act or omission by the hospital or health care professional, which injury or death occurred at a time when a hospital or health care professional was rendering assistance to the state in response to the COVID-19 outbreak.” 

Maryland Immunity Laws for COVID

For patients in Maryland, Governor Hogan issued a Renewal of Declaration of State of Emergency and Existence of Catastrophic Health Emergency – COVID-19. The declaration provides: “health care providers who act in good faith under this catastrophic health emergency proclamation, including orders issued under the proclamation by the Governor and by other State officials acting at the direction of or under delegated authority from the Governor, have the immunity provided by § 14-3A-06 of the Public Safety Article of the Maryland Code.”

Philadelphia COVID Immunity Laws

Governor Wolf signed an executive order in Pennsylvania, signed an executive order to provide: “immunity to any individual who holds a license, certificate, registration or certification to practice a health care profession or occupation in Pennsylvania and who is engaged in providing COVID-19 medical and health treatment or services during the COVID-19 disaster emergency response.”

Next Steps After Medical Misdiagnosis

Just because states have issued immunity laws that extend liability protections for COVID-19-related injuries and deaths does not mean you don’t have a claim. You may still be covered for injuries caused by a medical misdiagnosis, delayed diagnosis, or diagnostic errors. Talk to an experienced medical malpractice lawyer who can evaluate your injuries and help you recover the cost of medical treatment, loss of compensation, and money for pain and suffering. 

Talk to experienced trial attorneys who can review your case, get an expert’s review, and help you understand your legal options to file a claim after a medical malpractice injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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