MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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If I Got COVID in a Healthcare Setting, Does That Count as Medical Malpractice?

The COVID-19 pandemic has caused serious injury and death for hundreds of thousands of people in the United States. Most of the country became aware of the novel coronavirus in January 2020, when the U.S. reported its first confirmed case of the virus. By March 11th, the WHO declared COVID-19 as a pandemic, and days later it was declared a National Emergency. After that, many states began to issue stay-at-home orders to slow the spread. 

COVID-19 is often transmitted from person to person, generally through airborne particles. Healthcare institutions became a source of transmission and outbreak, as patients who were infected spread the disease to others. With symptoms developing days or weeks later, many people who suffered from the disease were sure they contracted the virus in a doctor’s office, hospital, pharmacy, or health clinic. 

In general, when an injury is caused by the negligence of a doctor or healthcare provider, the patient can make a medical malpractice claim to recover damages. However, people may have a difficult time recovering damages for injuries caused by COVID in a health care setting. If you have questions about your options, talk to an experienced medical malpractice attorney about your legal rights after a malpractice injury. 

Injuries From COVID-19/Coronavirus

The risks of injury and harm from COVID are much more dangerous than the flu or the common cold. Even healthy people can be seriously injured or killed from the virus. Anyone can have mild to severe symptoms of the virus, including: 

  • Fever
  • Chills
  • Cough
  • Shortness of breath
  • Fatigue
  • Muscle or body aches
  • Headache
  • Loss of taste or smell
  • Sore throat
  • Congestion or runny nose
  • Nausea or vomiting
  • Diarrhea

When the symptoms are severe, the patient may go through hypoxia, where they do not get enough oxygen to vital organs, including the heart and brain. Symptoms of hypoxia include trouble breathing, or blue-colored skin or lips. Left untreated, COVID can be fatal. Most people think of COVID-19 as primarily affecting the lungs but it can cause damage to other organs, including the brain and heart. Some patients have shown damage to the heart muscles, increasing the risk of heart complications. Brain complications have included stroke, seizure, and Guillain-Barre syndrome, which can cause temporary paralysis.

Long-Term Health Complications of COVID

Even after recovering from COVID, individuals can have long-term complications of the viral infection. Many of the long-term health impacts are still unclear and continue to emerge. In some patients, COVID-19 has caused permanent damage to the lungs, with scarring of the lungs similar to pulmonary fibrosis. Serious lung damage may require assisted breathing devices or even a lung transplant. 

Normally healthy patients and even children have reported “long-COVID” symptoms. For weeks or months after contracting the virus and after recovering, individuals may report: 

  • Exhaustion
  • Difficulty concentrating
  • Memory problems
  • Muscle pain
  • Loss of smell or taste
  • Depression
  • Anxiety
  • Dizziness
  • Difficulty with school work
  • Decreased athletic performance
  • Breathing problems when exercising

However, shortened time limits may be doing a disservice to injury victims. Many injuries take time before their full extent is understood. For example, back pain caused by a negligent surgery could be more tolerable shortly after the injury but could get worse over time. Over the course of years, the injury victim may be left suffering chronic pain or physical disability. Failure to let the injury victim recover damages rewards the negligent doctor at the expense of the victim. 

State Immunity for Health Care Providers

Most people will be limited in their ability to file a medical malpractice claim caused by COVID which they believe was contracted in a health care setting. Most states have enacted executive orders that gives broad immunity to doctors, hospitals, and health care providers for claims related to COVID-19. On March 24, 2020, the Secretary of Health and Human Services issued a letter to state governments to provide civil immunity from medical liability for health care professionals treating patients for COVID-19. 

In most states, healthcare providers are insulated from liability risks associated with COVID-19. This includes direct risks of COVID treatment and indirect risks associated with the virus. States like Maryland have statutes that immunize care providers after a public health emergency is declared, which includes the COVID-19 outbreak. 

Proving Point of Contact and Contamination With COVID

It may be very difficult to prove that a patient was infected with COVID from a specific source. One of the problems that allowed COVID to spread so quickly was the long incubation period. According to the Centers for Disease Control and Prevention (CDC), “based on existing literature, the incubation period (the time from exposure to development of symptoms) of SARS-CoV-2 and other coronaviruses (e.g., MERS-CoV, SARS-CoV) ranges from 2–14 days.”

This generally means someone who becomes ill after contacting COVID could have been exposed to the virus just about any time over the past 2 weeks. 

For example, Bill was at work from June 1 to June 5. On June 6, Bill fell on the stairs and hurt his toe. The next day, June 7, Bill went to the drug store to buy a foot bandage. Bill took the next week off of work and ordered food for delivery, because of the foot injury. Eventually, on June 12th, Bill went to the emergency room. An X-ray revealed a broken toe. After he was treated, he went home. On June 14th, Bill developed symptoms consistent with COVID. Bill suspected he was exposed at the ER because there were a lot of sick people coughing. However, he could have been exposed at work, the drug store, from delivery drivers, or even by someone at his own home.

Another problem with proving the source of contact is that it could come from someone who was infected without any symptoms. Some people have no obvious signs of COVID or very mild symptoms. Someone can be a carrier and spreader of the virus for two weeks before they even get any symptoms. This leaves the source of infection wide open to almost anyone the patient came in contact with over the course of two weeks or more. 

Additionally, another complication involves testing for COVID. Especially in the early days of the pandemic, many people became ill with COVID-like symptoms and stayed home to recover. The individual may have never had a COVID test to identify if they were positive for the virus. They may have the COVID antibodies after recovering but even the antibodies may go away after a period of time. This means someone could have contracted COVID, suffered symptoms, and recovered all without any evidence of the virus. Without evidence that the infection was actually COVID, it would be difficult to make an injury claim.

Immunity May Not Cover Intentional Harm

Even if a doctor or hospital is protected from claims of medical negligence, it may not extend to intentional harm. Intentional torts may include battery, assault, or intentional infliction of emotional distress. These claims are rare in healthcare settings because they require showing the health care provider intended to cause harm or put the victim into fear of an immediate injury. Talk to an experienced personal injury if you suspect you were injured because of intentional actions to cause the injury.

Other Hospital-Acquired Infections

The coronavirus, like the cold virus, is most commonly spread through air particles or direct contact with the virus. The most common ways to reduce transmission from person to person involved hand-washing and wearing a mask. Wearing a mask and washing your hands can greatly reduce the risk of transmission but it may not eliminate the risk. Other ways to reduce the risk of spread include social distancing, regular surface cleaning, putting up barriers, and moving activities outside.

The ways to reduce the spread of COVID are similar to ways to prevent the risk of other respiratory illnesses, including tuberculosis, measles, and chickenpox. Health care professionals are supposed to understand the risks of germ transmission and how to protect vulnerable individuals from infection. There are standard protocols for cleaning, disinfecting, and preventing cross-contamination. 

Despite the rules and regulations regarding sanitation, hospital-acquired infections (HAI), commonly infect patients, care providers, and visitors in hospitals, clinics, nursing homes, and other healthcare locations. Many of these infections are spread when institutions or employees fail to provide the standard of care required. Hospitals have a duty of care to their patients to take reasonable precautions and avoid the spread of infection through negligence. Negligent causes of infection may include: 

  • Failing to properly clean and disinfect areas
  • Failure to monitor HVAC systems
  • Failure to sanitize surgical equipment
  • Nurses, hospital employees, or workers coming to work when they are sick
  • Contaminated bed linens
  • Reusing medical supplies
  • Failure to take care of vermin
  • Not separating infected patients

It is no surprise that hospitals naturally have a number of sick people, including patients with bacterial, viral, or fungal infections. Hospitals have to take measures to keep rooms, equipment, beds, and surgical instruments clean and sanitized. Patients may be more likely to get an infection at a hospital than at home. According to a survey of more than 180 hospitals, the most common healthcare-associated infections include: 

  1. Pneumonia
  2. Surgical-site infection
  3. Gastrointestinal infection
  4. Urinary tract infection (UTI)
  5. Primary bloodstream infections
  6. Eye, ear, nose, throat, or mouth infection
  7. Lower respiratory tract infection
  8. Skin and soft-tissue infection
  9. Cardiovascular system infection
  10. Bone and joint infection

When these infections are caused by a lack of sanitary precautions, re-using medical equipment, or health care provider negligence, the patient may have a claim for medical malpractice. Like COVID, many of these infections are much more serious than the common cold. The body’s immune system may not be able to control the infection. Serious infections can continue to harm the body until the body goes into shock, lead to organ failure, or be fatal. Some of the most common viral and bacterial infections include: 

What happened during your hospital stay can make a difference in the likelihood of infection. The risk of infection after a short, non-invasive visit is generally lower than extended stays. The more time you spend in the hospital increases the risk of acquiring an infection. Other factors include: 

  • Whether you had an intravenous (IV) line
  • Whether you had an indwelling catheter
  • Whether you had invasive surgery 

When an infection is left untreated, it can lead to infection shock or septic shock. An introduction of bacteria into the body can lead to possible shock, including infection from a wound, burn injury, or surgery. Shock caused by infection can lead to ischemia (restriction in blood supply to tissues), organ dysfunction, and death. Signs and symptoms of possible infection shock can include: 

  • Fever 
  • Low blood pressure
  • Low urine output
  • Altered mental status
  • Vomiting or diarrhea
  • Muscle aches
  • Headaches
  • Loss of consciousness
  • Fatigue
  • Seizure

Other Medical Errors During Lockdown

During 2020 and into 2021, it was a stressful time for everyone. The daily lives of almost everyone changed, almost overnight. For medical care, there were many more precautions taken to protect the vulnerable communities, including the elderly and immunocompromised. However, people still needed medical care for common health-related events, including emergency care, physical therapy, and surgery. 

The immunity protections for COVID-19 are broad but they may not cover other medical errors. A doctor should still be held accountable when they go outside the standard of care, cause injury to a patient, and leave the patient suffering damages. An injured patient may be able to file a medical malpractice claim against the doctor, surgeon, hospital, or other medical professional to recover damages. Damages in a medical malpractice case may include: 

  • Medical bills
  • Loss of income
  • Future medical care
  • Loss of future earning capacity
  • Pain and suffering
  • Loss of enjoyment in life

There is a limited time to file a malpractice claim. The time limit to file a medical malpractice lawsuit is based on the statute of limitations. If the injury victim files a claim after the statute of limitations has run out, they may have their claim denied. In some cases, the time limit can be extended, including for minor children and when the medical error was not discovered until a later date. Talk to your experienced medical malpractice law firm to make sure your claim is filed in time. 

Experienced Medical Malpractice Attorneys

Just because the state has granted broad immunity to hospitals and health care providers does not mean you don’t have a case. Many medical injuries can be caused by a combination of factors, including exposure to COVID-19. The hospital can claim they are not liable for the coronavirus injuries but the hospital could be liable for other infections, misdiagnosis, or medication errors. 

An experienced medical malpractice attorney can review your case, have a medical expert review your medical records, and help you determine if you have a claim against the doctors and hospitals. 

Contact experienced trial attorneys who have successfully represented medical negligence victims and their families to recover financial compensation. Your legal team will advise you of your legal rights and can help you recover the maximum award available. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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