Attorneys Miriam Johnson and Timothy Kenlan Author Op-ed: Don’t Grant Immunity for Providers During Outbreak

This opinion piece appeared in the Maine Compass section of Centralmaine.com representing the Kennebec Journal and Morning Sentinel: Don’t Grant Immunity for Providers During Outbreak

No one wants frivolous lawsuits, but it is important to hold nursing homes and other medicals providers accountable when they make errors.

In response to fears of impending lawsuits, a few states whose legal systems are different from Maine’s have granted immunity to nursing homes and medical providers for deaths caused by the COVID-19 pandemic. Seizing on this, special interest lobbyists for hospitals and other health care providers have proposed even broader immunity from legal accountability in Maine. This crisis should not be used as a political tool to eliminate legal safeguards and protections for patients—particularly for those, like nursing homes patients, who are most vulnerable.

Although we represent patients who have experienced substandard medical care, we recognize that dedicated doctors, nurses, and other healthcare providers place their own safety at risk to provide care for those with Coronavirus. These providers should be allowed to do their important jobs without worrying about being sued for exercising their best judgment in difficult circumstances.

But what if medical providers do not act reasonably in the management of patient care?  What if, for example, a nursing home had a resident who presented in early March with symptoms of Coronavirus, but took no action to test the resident or segregate him from others, resulting in widespread outbreak of the virus and numerous preventable deaths?  What if a regional hospital, without an ICU or ventilators, admits a patient who clearly needs ventilation rather than transferring the patient to a hospital able to properly treat this patient?

The goal of our medical malpractice system is to sort out claims that have merit from those that do not.  Under our current system, a medical provider cannot be legally liable unless the patient can prove that the provider’s care deviated from the care that a “reasonably competent” medical provider would have provided “under the same or similar circumstances.”  To be negligent, a medical provider must have acted unreasonably, after taking into account the circumstances in which the medical provider was acting.

Likewise, in Maine there are procedural barriers that already make medical malpractice claims difficult to pursue (and win).  Maine’s system requires all patients who want to bring a medical malpractice claim in court first present the claim to a pre-litigation screening panel, which includes a doctor in the same medical specialty as the doctor against whom the claim is presented.  This system is designed to put a thumb on the scale on the side of the doctor.

The time and expense of pursing medical malpractice claims in Maine are often prohibitive, even with meritorious cases—a single case often takes years and costs tens of thousands of dollars to litigate. For this reason, very few medical malpractice cases are filed in Maine each year; there are only a handful of attorneys who handle these cases on behalf of patients on a regular basis; and most instances of medical negligence are never pursued at all.

Maine’s legal system already provides substantial protections to our valued medical providers, while also balancing the interests of those patients who have been catastrophically injured by unreasonable medical care and deserve an opportunity to have their claims heard.  The system weeds out frivolous claims that should not go forward, while imposing standards of accountability on the medical system that help ensure greater safety for all patients.

The COVID-19 pandemic does not justify changing Maine’s system.  Under current law, no malpractice case against a medical provider or a nursing home will succeed merely because a Mainer became ill or died in a hospital or nursing home.  The plaintiff has the burden of proving unreasonableness under the circumstances, and in the COVID-19 context, there can be little doubt that what would be considered “reasonable” in these circumstances would afford much benefit of the doubt to health care providers.

We should reject the cynical efforts of the health care and insurance lobbyists to exploit the pandemic to gain blanket immunity against all legal claims.   Such an approach would disrupt a legal system that balances the interests of doctors and patients and would eliminate the important role of our communities in enforcing minimum standards of practice and accountability on the part of medical providers that protect all of us.

 

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