Photograph of a gavel in front of a British flag

A New Litigation Crisis on the Horizon: Negligent Delays for Non-COVID-19 Patients

By John Tingle

As the dust begins to settle around the COVID-19 pandemic, a clearer picture is beginning to emerge of possible litigation trends against the United Kingdom’s NHS (National Health Service) for actions taken during the crisis.

Many NHS services have been reduced or suspended during the crisis. Negligent delays in treatment are a common cause of action in clinical negligence and medical malpractice cases. Legal claims could be made by patients who argue that they have suffered, and continue to suffer, because of lack of access to care and treatment due to COVID-19 NHS emergency restrictions. These claims raise tort, public law and human rights concerns, and some law firms have already been approached by patients asking for advice in this area.

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Kirkland, WA / USA - circa March 2020: Street view of the Life Care Center of Kirkland building, ground zero of the coronavirus outbreak in Kirkland.

How COVID-19 Could Drive Improvements in Care Facilities (Part II)

By Nicolas Terry, LLM and Tara Sklar, JD, MPH

This post is part II of a two-part series on COVID-19 and care facilities. In the first installment we assessed the centrality of care facilities to the COVID-19 pandemic and outlined the infection risks for residents and workers. In this second installment we will explore how improved regulation and enforcement, combined with liability rules, provide the best path forward to improve an industry that, despite its deficiencies, claims it deserves exceptional immunity.

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Gloved hand holding medical rapid test labeled COVID-19 over sheet of paper listing the test result as negative.

How COVID-19 Could Drive Improvements in Care Facilities (Part I)

By Nicolas Terry, LLM and Tara Sklar, JD, MPH

Introduction

This post is part I of a two-part series on COVID-19 and care facilities. In this first installment we assess the centrality of care facilities to the COVID-19 pandemic and outline the infection risks for residents and workers. In the second installment we will explore how improved regulation and enforcement, combined with liability rules, provide the best path forward to improve an industry that, despite its deficiencies, claims it deserves exceptional immunity.

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State Civil Liability Protections for Physicians who Provide Care During Covid-19 Pandemic map.

How States are Protecting Health Care Providers from Legal Liability in the COVID-19 Pandemic

By Valerie Gutmann Koch

Since the onset of the COVID-19 pandemic, clinicians and policymakers alike have raised the alarm about potential legal liability for following crisis standards of care.

Liability protections may be necessary when, due to the circumstances of the emergency, a state faces scarce resources (such as ventilators or ICU beds) and the state activates its crisis standards of care (CSC). A CSC authorizes the legal prioritization of patients for scarce resources based on changing circumstances and increased demands. CSCs provide a mechanism for reallocating staff, facilities, and supplies to meet needs during a public health emergency.

Notably, and by necessity, the standard of care that clinicians may be able to provide during the COVID-19 pandemic may depart significantly from standard non-emergency medical practice. In a non-crisis setting, the prevailing medical standard of care focuses on the needs of each individual patient and is centered on the principle of informed consent. In a public health emergency, however, such concentrated care may be impossible or inadvisable due to: (1) resource limitations and (2) the goal of saving as many lives as possible.

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Courtroom concept. Blind justice, mallet of the judge. Gray stone background.

Lawsuits as Conduits for Misinformation During COVID-19

By Ana Santos Rutschman and Robert Gatter

On April 21, Missouri Attorney General Eric Schmitt filed a lawsuit against China for having “deceived the public” about COVID-19. The complaint, which names the Chinese Communist Party, the Wuhan Institute of Virology and other government-run entities as defendants, puts Missouri in the unenviable position of being the first state to sue a foreign nation demanding damages for economic and non-economic losses associated with the pandemic. But Missouri is not alone. A putative class action was brought nearly simultaneously in New York against the World Health Organization, also seeking damages for “injury, damage and loss” caused by COVID-19.

In addition to tracing the early history of the Missouri and New York suits, in this post we explain how these high-profile lawsuits are being used as conduits for misinformation in ways that are likely to accelerate the crystallization of misinformation and their recurring sources. Moreover, these lawsuits add to the ongoing instrumentalization of the individual and collective hardships created by a major public health crisis as a tool to further ideology – as has happened recently in Texas in connection with abortion rights throughout the duration of the pandemic.

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LOMBARDIA, ITALY - FEBRUARY 26, 2020: Empty hospital field tent for the first AID, a mobile medical unit of red cross for patient with Corona Virus. Camp room for people infected with an epidemic.

Pandemic Guidelines, Not Changed Malpractice Rules, Are the Right Response to COVID-19

By Valerie Gutmann Koch, Govind Persad, and Wendy Netter Epstein

On March 17, the Washington Post published an op-ed by Dr. Jeremy Faust, titled Make This Simple Change to Free Up Hospital Beds Now. In it, he argues that cities and states should “temporarily relax the legal standard of medical malpractice,” in order to encourage hospitals to admit, and physicians to treat, the patients who need help during the COVID-19 pandemic.

In a tweet promoting the piece, Dr. Faust expresses concern that in the absence of such a legal change, “docs will keep doing ‘usual’ low yield admissions.”

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Close up of the Lady of Justice statue

The Privatization of Opioid Litigation

By Dan Aaron

As the opioid litigation continues over the shadow of one of our nation’s most pressing public health crises, some criticism has been levied at private lawyers representing the cities, counties, states, and individuals harmed by the crisis. For example, see the following tweet:

Let’s work out tax and healthcare financing policy county by county, with private lawyers taking a 25% cut every time. Judge Polster seems to like this idea.

The critiques are many, but can be summarized: (1) private lawyers are being enriched; (2) private lawyers are setting opioid policy; (3) private lawyers have misaligned incentives; and (4) private lawyers will not support public health.

Arguably, all these arguments bear some truth. However, do they suggest that the opioid litigation is incorrigibly tainted and tort litigation the improper avenue to address mass torts such as the opioid crisis?

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Photograph of Purdue Pharma headquarters

The Role of Attorneys General in the Opioid Litigation

By Daniel Aaron

People following the opioid lawsuits might have noticed some strange headlines as of late. Virtually every state’s attorney general (AG) is suing Purdue Pharmaceuticals, maker of the blockbuster drug OxyContin. Purdue filed for bankruptcy and is hoping to settle for “$10 billion.” However, the deal only includes $4.4 billion in cash, which is less than the Sackler family, owners of Purdue, transferred to personal accounts over the past decade. In other words, the amount of money the Sacklers made from the opioid epidemic is more than what they will pay more than forty states to help abate the crisis. Is anyone supporting this deal?

Yes, in fact, and this is where the plot thickens. With several exceptions, support for the deal falls along party lines: Republican AGs support the deal, and Democratic AGs oppose it. Why does a decision about settling with an opioid company appear to be political? What is the role of an attorney general? And are they supposed to defend public health?

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