As the reduction of COVID-19 eased restrictions on personal litigation, medical malpractice lawsuits have resumed significantly. In February, our Hall Booth Smith team tested a $ 10 million paralysis case in several North Arkansas defendants, something that would not have been possible during the dark days of the 2020 and 2021 pandemics. The case illustrates one of the major problems. caused by the pandemic: delay.
Fortunately, the tsunami of COVID cases originally expected in the first days of 2020 has not reached the shores of Northwest Arkansas. This is mainly due to the early issuance of enforcement orders in 2020 and legislation in 2021 granting limited liability immunity to Arkansas companies, including health care providers, difficulties in establishing the applicable standard of care and difficulty in proving an immediate causal link between the actions of healthcare providers and the contraction and effect of COVID on individual patients due to the incubation period of the virus.
As the applicable limitation period in cases of medical malpractice is two years, healthcare providers are still at risk of COVID-related medical malpractice claims dating from early to mid-2020. This is due to a failure to diagnose of COVID, delay or refusal of “elective” or “non-essential” care, “community dissemination” of COVID in medical facilities, negligent treatment of COVID and delay or refusal of care due to lack of capacity or access of the facility to medical equipment caused by from patient overload. Healthcare providers need to know their options when these cases are filed.
There are also federal regulations on immunity from liability. The Public Preparedness and Emergency Preparedness Act (“PREP”) authorizes the Minister of Health and Human Services (“HHS”) to issue a declaration granting limited liability to businesses, including medical service providers, in response to COVID. Protections under the PREP Act can be a valuable protection option for healthcare providers and should be considered in any case involving COVID issues.
Other challenges facing health care providers in northwest Arkansas include staff shortages – especially for registered nurses. The huge demand for nurses in the United States makes competition for qualified personnel fierce. An increasing number of graduate nurses are moving from Arkansas to take advantage of employment opportunities elsewhere, often with several new staffing companies willing to pay more than many health care providers can afford. The trend has significant implications for the standard of care and is likely to focus soon on medical malpractice lawsuits.
Another related to the development of medical service providers is the recent conviction of a registered nurse at Vanderbilt University Medical Center for negligent criminal murder. The nurse ignored the safety control of an automated medicine cabinet and gave the patient a fatal dose of the wrong medicine. Such a result increases the stakes for all medical service providers, adding a criminal dimension to traditional civil litigation for medical errors. This case significantly hampers the overall protection against medical malpractice claims in civil court and will inevitably increase the insurance premiums for the liability of medical service providers and the cost of healthcare for consumers.
While state and local measures address some of the issues of immunity against COVID, the above-mentioned concerns about staffing and the criminalization of medical malpractice are areas that state and federal legislators need to address.
Arkansas has an uneven history of “tort reform” and lags behind many other states in protecting health care providers from onerous lawsuits for medical malpractice. We hope that lawmakers will review the legislation during the next state and federal legislative sessions to help health care providers adjust to these rapidly changing times after a pandemic.
Jason Hendren is a lawyer and managing partner of Hall Booth Smith at Rodgers. He can be found at 479-391-6202. The opinions expressed are those of the author.