You're Probably Not Suing Anyone Because Your Loved One Got COVID-19

The population we serve is at great risk due to COVID-19, especially those who are both elderly and have some sort of pre-existing condition (or in medicalspeak, a comorbidity). We have heard any number of reports in the last weeks about the virus ravaging assisting living facilities and nursing homes in New Jersey and in fact throughout the country. We get calls from clients and people in the community, and they boil down to this: I'm angry. I'm hurt. I'm upset. I want JUSTICE. I want retribution. I want to sue somebody because I'm upset someone has COVID-19 or might transmit it to my loved one in a hospital or a nursing home or an assisted living facility. Can I sue them?

The answer is probably not, due to a bill passed by both houses on April 14, 2020 which the Governor is expected to sign on April 15, 2020. And in this lawyer's opinion? It's exactly the right move.

The bill provides immunity to healthcare providers (who are defined in detail in the bill itself) who are providing healthcare services specifically related to COVID-19. Lots of medical services are not subject to this immunity, like routine medical procedures unrelated to COVID-19, and anything undertaken by a medical professional that constitutes “crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.” The bill also requires that anyone claiming the immunity has to have abided by reasonable procedures to provide care and prevent communication given their limited resources. My initial read on the bill indicates that doctors, nurses (and their ilk), and hospital systems and nursing homes/assisted living facilities can benefit from the immunity provisions. The immunity provisions are retroactive to the beginning of the public health emergency.

Why is this a good thing? Put very simply, right now, it is impossible to gauge any kind of legal liability because there is an active ongoing crisis. To require otherwise would be something like the fire department trying to determine who is at fault for a building burning while the firefighters are trying to put out the flames. Healthcare systems live on very slim margins, and one of the biggest threats to their continued existence is the fear and risk associated with litigation. If there is the potential for huge exposure for every COVID-19 case they come into contact with, they will simply refuse to treat them. Legal exposure for every COVID-19 case would probably bankrupt every healthcare institution in the State. The State, meanwhile, is requiring that hospitals and care facilities admit and treat people with COVID-19. They cannot reasonably require the healthcare system to admit this population without some assurance that the legal system will not destroy them after this is over.