For serious health conditions, time is of the essence. Delaying treatment by a few months, a few days, or even a few minutes can increase the risk of harm or death. A doctor who unnecessarily delays treatment can be negligent in causing injury to a patient who needs timely care. Delayed treatment is a basis for many medical malpractice lawsuits.
The American Medical Association (AMA) is seeking to expand doctors’ legal immunity, using the COVID-19 pandemic as a cover. When doctors, hospitals, and insurance companies lobby lawmakers to limit recovery for injured families and their patients, it can be difficult to reverse the trends, putting corporations before injury victims.
AMA Seeking to Expand Lawsuit Immunity
According to the AMA and the Medical Professional Liability Association (MPL), an insurance industry trade group, put out a policy statement under the COVID-19 emergency. Among the priority for the insurance companies is to expand immunity as far as possible for claims against hospitals and healthcare providers. Fewer claims mean that the insurance companies make more money.
Sample language from the statement include the following:
“Physicians (may also include hospitals/facilities or other health care professional) shall be immune from civil liability for any injury or death alleged to have been caused due to a cancellation, delay, or denial of care resulting from a governmental or health care facility order, directive, guidance, policy, or procedure, or otherwise in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such physician (or health care professional).”
This change in state laws would allow doctors to negligently delay or deny healthcare that causes injury or death. The bar for a malpractice claim would increase to a much higher burden of showing “gross negligence.” Gross negligence generally means a deliberate and reckless disregard for safety, which would be difficult to show in all but the most outrageous examples of malpractice.
Protections Against Abuse Already Built Into Medical Malpractice Laws
COVID-19 restrictions have changed access to healthcare, prioritizing worker and patient safety by limiting the spread of the infection. This may also cause a delay in elective surgeries, less critical medical conditions, and delay scheduled treatments. However, blanket immunity is unnecessary because the laws already protect doctors who are doing the right thing but are limited by emergency situations.
The basis of a medical malpractice claim is showing that the doctor or healthcare professional failed to use the same standard of care as another professional in a similar situation. If the doctor did what another reasonable doctor would have done under the same circumstances, the doctor would generally not be found to have committed malpractice.
The “standard of care” already takes into account the emergency COVID-19 orders. Treatment for things like elective surgeries were canceled, delayed, or rescheduled across the board because of the outbreak, and that was the accepted standard of care at the time. Writing a new law to extend protections for all but the most extreme examples goes too far, putting injury victims at the mercy of the insurance companies.
According to Heidi Lu Feldman, professor at Georgetown University Law Center, the AMA suggestions are “shameless.” “It’s not a good look for people responsible for health and welfare to be saying ‘and please make sure we’re never questioned as to whether we acted carefully enough.’”
Negligent Health Care Hurts Everyone
Negligent health care is not just bad for the patient, it is bad for public health. Protecting careless and negligent doctors allows them to go on injuring other patients. Patients may also be less trusting of the healthcare industry when they know it does not protect them against negligence. If you were injured because of a medical mistake, talk to the experienced team at Gilman & Bedigian. Contact us today for a free consultation.
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