This Pandemic was Foreseeable. Hospital Systems that Chose not to Adequately Prepare may be Liable for Failure to Protect First Responders from Foreseeable Harm (but beware Workers’ Comp bar).

In recent days, disturbing reports have surfaced about large health care organizations failing to take adequate precautions to protect their staff during the Coronavirus / COVID-19 crisis. This pandemic was foreseeable. Large health care institutions were at least on inquiry notice about this catastrophe or a similar one (they were in such a position that they should at least have inquired about the risks of such an event, but in terms of its probability and its magnitude). For patients and potentially for certain health care workers, it may be possible to present claims against a hospital system for serious injury or wrongful death substantially caused by lack of access to equipment critical for dealing with Coronavirus / COVID-19. Such a case could only succeed to the extent that errors or omissions on the part of a hospital system substantially contributed to the shortage.

The Foreseeability of Pandemics like Novel Coronavirus / COVID-19

The public health risks of potential outbreaks of infectious disease have been known for decades. This has never been just a theoretical threat. The Cold War saw the forces of NATO and the Warsaw Pact amassing enormous stockpiles of biological weapons over some 50 years. The War on Terror saw enormous concern about terrorists employing biological weapons: some of you may be old enough to remember the introduction of the color-coded threat level system shortly after 9/11, as well as the magazine covers depicting American civilians sealing their houses with duct tape.

The potential consequences of attacks with from such biological agents were studied as matter of national defense. These efforts often had the benefit of military funding. Coordination of the military response with the public health sector would have been an indispensable component of any effective response to any militarized outbreak. The same is true of coordination within and between major hospital systems in such a scenario.

Even discounting the possibility of a pandemic arising from a foreign enemy, the credible specter of a pandemic has been very real for many years. Anyone reasonably curious about the state of the world knew it was only a matter of time. The last several decades have seen the wide-scale fragmentation and obliteration of tropical forests, along with a hideous and prolific trade in wildlife for meat and “traditional medicine.” These processes release potentially thousands of previously unknown pathogens into the human environment. HIV originated in this way, as did SARS and Bird Flu, and so have some outbreaks of Ebola. Entire branches of medical science have been devoted to the tracking, containment, and treatment of infectious disease.

Causation of Equipment Shortfalls: External v. Internal Factors

Some of the best minds on earth have been hard at work on this problem, and for good reason. Much praise is being paid – and rightly so – to the heroic front-line medical personnel risking their lives and health right now for the public good. Beyond their efforts, dedicated geneticists, statisticians and public health experts have been doing all in their power for many years – not only to contain and track the current pandemic, but to keep future ones at bay.

Unfortunately, even the best individual efforts sometimes cannot overcome systemic weaknesses. As everyone knows well by now, many hospitals are lack sufficient supplies of N-95 masks, ventilators, sterile gowns, and face shields. The probability of future pandemics like this – or even worse ones – demands that we understand why and how this was permitted to happen. Broadly speaking, there appear to be only 2 possible categories of explanations as to why any given hospital system might have failed to acquire adequate supplies of the equipment necessary to protect its personnel and/or treat its patients in the event of a foreseeable, future pandemic:

  1. External Factors: The first possibility is that this failure arose from some external factor beyond the hospital system’s control (for instance, lack of availability on the market for prolonged period of time before the pandemic, whether due to supply chain limitations or bad governmental policy). In the case of a purely external causes for lack of critical supplies, a hospital system could not reasonably be held responsible for a failure to procure them in anticipation of a pandemic.
  2. Internal Factors: The second possibility, however, is that some internal factor (within the hospital system’s control) could be responsible for a lack of critical equipment. For instance, a given hospital system lacking critical supplies may be in that position by virtue of having:
  1. …disregarded - or remained willfully ignorant to - the known risk of a pandemic, despite consensus among experts of its eventuality and implications;
  2. … been aware of the risks, but having failed to consider a possible response;
  3. …been aware of the risks AND planned an appropriate response (whether an advance purchase or adoption of a rapidly-implementable contingency plan), but either:
    1. had chosen not to carry out it its plan, or
    2. made its plan in such a way that its implementation was not possible in a pandemic scenario.

Sometimes, causes of lack of equipment may be the result of both internal and external factors. Just because there may be such a mix of causation does not mean a negligent hospital system cannot be held liable for its part of the fault. The common law of torts generally holds that parties may be liable to the extent that they materially contributed to the causation of injury. In other words, bad actors do not have to be the sole factor involved in causation in order to be held liable, though the scope of their relative contributions to fault should be (and sometimes must be) determined and presented.

Causation Defenses Specific to Coronavirus / COVID-19

A more complex consideration of causation arises from the infectious modalities of the Novel Coronavirus itself. The virus is highly contagious, increasingly prevalent in broader communities throughout America, and may be transmitted by people who are asymptomatic. As such, in defending any action for wrongful death or serious injury relating to lack of protective equipment, hospitals will almost certainly take the position that causation of injury or death in any given person is not fairly traceable to any act or omission on the part of the hospital. That argument would not be credible where question of causation is focused after contraction of the disease, not at the time of contraction itself.

For instance, such a defense (diffuse causation of infection) would not work in case of death from absence of ventilators that could have been acquired but for a hospital’s negligent choices. In contrast, the defense might work against an argument that a hospital’s neglect to acquire sufficient N-95 masks and visors caused a seriously injured health care worker to contract COVID-19.

Problems in Seeking Recovery from Government Agents or Suppliers

As to external factors, government policymakers generally are immune from responsibility for making bad policy. Limitations in availability due to the supply chain issues are often difficult to pinpoint, and in terms of holding suppliers responsible, the necessary links of causation, foreseeability, duty, and standing become too attenuated. Availability, however, is a different concern than a defect in otherwise critical equipment. Product liability law may provide some recourse against manufacturers and suppliers of defective medical equipment.

Impact of Workers’ Compensation Laws

Sadly, most persons who were effected at their workplace will only have remedies through the workers’ compensation system. However, there may be exceptions to the workers’ compensation bar against other recoveries:

  1. Some hospital systems are already taking the position that health care workers’ contraction of Coronavirus / COVID-19 from the wider community cannot be ruled out, so workers’ compensation relief is not available for such illness claimed to have been acquired on the job. To the extent a employers disclaim the availability of workers’ compensation remedies, they may expose themselves to liability under general negligence or even strict liability theories of obligation.
  2. If a health care system’s actions were so reckless as to amount to intentional conduct, the workers’ compensation ordinary preclusion of recovery for negligence would not apply;
  3. Circumstances where there is clear causation but a break in the “employment” chain, for example:
    1. Family members who suffered serious injury and/or death after contracting infection from an inadequately-protected medical professional may have independent claims against a hospital system that failed to provide adequate gear (particularly if subjected to mandatory isolation with that infected medical professional);
    2. Persons working as independent contractors and/or who are not otherwise covered by workers’ compensation insurance may have claims against the company for whom they work
    3. Depending on contractual terms, medical professionals working for independent practice groups may retain claims against hospital systems

NW Business Law is here for you during the Coronavirus pandemic. Please call to discuss possible claims arising from:

  • Serious injury or wrongful death of a health care or emergency response professional due to workplace exposure to Coronavirus/COVID-19,
  • Serious injury to or wrongful death of a patient due to a lack of lifesaving equipment, such as ventilators.

We care greatly about the safety and health of our community, and of its medical professionals - the heroes that are risking their lives to keep the rest of us safe. Our number is (206) 209-0069.

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