By Jennifer S. Bard
The longer the pandemic continues, the more obvious it is how effective the sweeping federal and state laws shielding medical providers from malpractice associated with COVID-19 have been. Few cases have been brought, and so far there is no record of successful judgements or settlements.
Even without these statutes, proving negligence in COVID-related cases would be exceptionally difficult, given the ever-evolving virus and treatment options. Still today it would be hard to prove that any good faith attempt at care was unreasonable and that there was a causal link to greater harm — both necessary to demonstrate negligence.
But, at some time in the relatively near future, this will change. The declared public health emergency will end, and with it the federal and remaining state blanket liability protections. A standard of care will develop and issues involving the prevention, diagnosis, and treatment of COVID-19 will become the subject of tort litigation.
When that time comes, it will become apparent that the U.S. torts system has never been able to fill the role it has long been asked to play as a substitute for a comprehensive social security disability system, or even as an incentive for more careful behavior. This is because a system designed to shift the cost of care onto those whose carelessness caused the need for that care is premised on their ability to assess the risk in advance, take effective measures to prevent it, and adequately compensate for both current and future needs. Few real-life situations meet all of those criteria, and the situations likely to emerge as the majority of the U.S. population experiences multiple COVID-19 infections do not meet any of them.
As a starting point, while the risk of future harm to the population infected by COVID is well understood, the risk to any particular individual is not. So, while COVID is now frequently described as a “mass disabling event,” the Federal Reserve already estimates that long COVID will strain the labor supply, and HHS has issued guidance describing it as a disability under the Americans with Disabilities Act, a potential individual plaintiff seeking to prove their own risk of future harm is likely to find their case dismissed as speculative. And even if a plaintiff can survive the hurdles of proving breach, duty, and causation, they are likely to face even greater hurdles concerning the time limit for bringing an action and proving their damages.
Statutes of Limitation
Every civil action in the United States comes with an expiration date. If a plaintiff does not bring a law suit by that date, no matter how egregious the behavior or serious the harm, they are forever barred from doing so.
Tort reform, an effort by industry to make it more difficult for patients to access the courts, has been highly successful in reducing the time for bringing suit from the already short two or three years to, in some states, only one. While all statutes of limitations have provisions for extending the time to sue by considering when plaintiff should have “reasonably discovered” the negligence, or even stopping the clock when a plaintiff is a minor or otherwise incompetent, none extend indefinitely. Typically whatever leeway plaintiffs have is capped by a statute of repose, which prohibits actions after a set period of time, sometimes as short as four years, regardless of the age of the plaintiff and whether discovered or not.
The characteristics of COVID make it likely that those who survive initial infection may experience future harm greater than that experienced initially, and thus, patients may not know they have been misdiagnosed or mistreated until many years later. This lag in recognizing the harm resulting from a COVID-19 infection would effectively bar plaintiffs from a tort claim.
Challenges associated with statutes of limitation are likely to pale in comparison to the much larger issue: assessing future damages at the time of judgement.
The award that plaintiffs receive reflects an estimate of the cost of compensating for future harm — the more likely that harm is to occur, the more it will be reflected in the amount of recovery. For example, every time someone suffers a broken bone there is a likelihood of future arthritis.
But even when more is known about post-COVID sequelae, it will be a very long time before the likelihood of future harm and the extent of that harm becomes a generally agreed-upon body of knowledge. So, an action based on a failure to diagnose and appropriately treat COVID may involve a plaintiff who has already recovered but is facing unquantifiable risks of future disabling conditions or premature death. Absent fraud, after damages are awarded, plaintiffs cannot reopen their suits to reflect greater-than-expected future harm.
Need for a Governmental Solution
The inadequacy of the torts system to compensate people for harm of which they were not aware at the time or harm that may only emerge long after exposure is not new. Plaintiffs faced with harm from asbestos or tobacco or talcum powder that only emerged years after exposure have long tested the limits of the torts system’s ability to fill in the gaps created by the country’s inadequate social safety net.
In the case of asbestos, Congress has tried but failed to mitigate the unfairness by establishing an alternative process of compensation through the Department of Labor. In contrast, Congress did pass a law mandating employers compensate employees who contracted Black Lung.
The scope and scale of the harm likely to be experienced by those infected with COVID-19 is, like so many things about this pandemic, unprecedented. Only a comprehensive expansion of the current structure for meeting the needs of those who require both medical care and support for the costs of daily living can address what is likely to be a future of ever-expanding need.