David Palacios Thurgood Marshall School of Law
Should doctors be liable for medical malpractice in regards to their handling of the COVID-19 Pandemic?
I do not believe doctors should be liable for medical malpractice for their handling of COVID-19 because hospital supplies/equipment varies per facility, it is the first modern pandemic, and the financial impact COVID-19 had on hospitals was unforeseeable.
Every hospital in this country is different in the sense that each hospital has a different number of supplies (i.e. medical equipment, staff, and a number of rooms to support patient’s). One could argue that hospitals should always be prepared for any circumstances because they are well funded. However, even before the pandemic “many hospitals were already facing financial pressures.”1 Even then how can a hospital have those extra supplies and rooms without occupancy? Each city has a distinctive population, and each hospital is built differently and has various supplies to support that population. Plus, one cannot predict when a major catastrophe will happen in order to be prepared. Moreover, to assist patients in the beginning of the pandemic may have been hard for some hospitals because there was an increase of pricing medical supplies. It was stated that “hospitals in New York City reported paying four times the usual price for medical gloves and 15 times the usual price for masks.”2 Therefore, how can one be liable for medical malpractice when it was challenging to receive enough supplies and space to support patients based on an unprecedented event.
In addition, this is the first modern pandemic, and doctors did not believe it would blow out of proportion. I remember hearing an interview from a podcast by the Daily. The interview was from a doctor when COVID-19 was first exposed, he and his colleagues did not generally believe this would be a catastrophe. Which seems fair based on how advanced the U.S medical system is. Furthermore, one can argue even though the U.S medical system is advanced then why was there legal immunity for doctors and health care workers from the death of COVID-19 patients? That question seems fair because a death can be due to gross negligence. However, the law covered that people could sue doctors if “it is established that such injury or death was caused by the gross negligence of such medical professionals.”3 Nonetheless, it may be difficult to make a case of gross negligence, but again from my first argument there is only so much a hospital can do because of the supply and support each facility can provide. Even at present the virus keeps mutating, so what contributes today to heal people may not work in the foreseeable future.
A loss of revenue and financial impact can affect the support from a hospital. It was reported in the beginning of COVID-19 hospitalization for some patients for a “four month period will be $36.6 billion.”4 Also, hospitals’ cancellation of surgeries that supported them had a financial impact. For instance, U.S non-federal hospitals “lost approximately $161.4 billion in revenue over a period of four months.”5 In the early months of COVID this affected other departments that treated patients with the virus. With a hospital loss of revenue, it affected the purchases of PPE (personal protective equipment) and non-PPE medical supplies and equipment (i.e. ventilators and oxygen). Due to the high demand of the items and the cost increase may have been hard for staff to aid their patients. Thus, with the loss of revenue it is highly likely it caused a lack of medical supplies to support hospital staff and patients to prevent or help during the early days of COVID-19.
To conclude, how can a doctor be liable for medical malpractice during unforeseen conditions practicing under the stress of COVID-19 when there is less supply for patients, and some hospitals could not maintain a high volume of patients. Especially, when there is a loss of revenue from hospitals. Moreover, any precautions to minimize the spread of the virus may change in the future because of the continued mutations. Doctors can only do so much to aid patients during this crisis, and their continued support to slow the spread of the new variant should not be overlooked.
How will COVID-19 impact the future of the legal industry and trial process including due process?
I would argue that COVID-19 will impact the future of the legal industry in a positive manner and there would be consequences for the trial process.
The legal industry would be benefited because lawyers would be able to expand their access to have video conferences with clients. But a critic can say what about people who do not have internet service or those who prefer to meet face to face. However, I do not believe that in the future it will affect them to schedule a meeting with their clients because they could work out their schedule to support both types of clients.
I believe the technology impact can have a positive effect for employees. Nonetheless, it could be argued if law offices become digital there could be layoffs or a difficulty of changing their work methods. I would disagree because the impact will not only affect the lawyers but the employees. Due to the fact employees will not be laid off because there would be a need for employees to help the law office with the increased caseload from online services. With this it can cause economic rewards for them. Of course, training employees would take time, but there would also be incentives for training to switch to online services. If an emergency happens to an employee, they would be able to work from home because they have the proper training to be in that situation.
The future impact of the trial process by the new technological advance due to COVID-19 would lead to issues. One can argue technology has been helping the court during this pandemic, and it has proved courts could be video streamed. By having this feature for the courts to move faster and lawyers being able to move from case to case. However, I believe there is a difference between video streaming and in person. For instance, if someone needs to whisper with their client it would be difficult. Further, it was stated, “tasks can take us up to three times as long as they used to…conducting court proceedings from our homes, scheduling virtual visits with clients in prison, and brainstorming and communicating with colleagues are all more cumbersome than they were before.”6 Now it can be said as time passes it could become better and the trial process can adapt to the technical advances. However, it could happen, but it will take years and with the process mistakes can happen in between that could affect due judgment from a judge or jury. Moving too fast can have its own consequences because streaming is not reliable, the internet may go out or people do not have internet (it is reported that 42 million Americans live beyond the reach of broadband service)7. So how would it be fair to those people that do not have the proper broadband service to be tried or serve the courts if moved online.
Also, court proceedings are recorded and could pick up private conversation or embarrassing moments from the background that could impact the judgment before the court. Plus, the court may be distracted from the background noise. I remember reading articles where trial proceedings were unprofessional. For example, in July 2021 a circuit-court divorce case in Michigan “the participants had appeared in court via their smartphones. He was on the road & parked his car to attend; she video-tx’d from her work break room.”8 It is situations like this that can cause distraction and embarrassing moments before the court, and they should be prevented from happening. One important fact I believe is the connection between the defendant and judge. Video conferencing compared to face to face is during one’s bail hearing they “cannot avoid a sacrifice of information that may threaten the quality of bail decisions, and a dehumanization that encourages a harsher response than would occur if the judge were faced with a live individual.”9 Thus, by producing unfair situations it could compromise due process.
To conclude, I believe COVID-19 would benefit the future for the legal industry because it will allow lawyers to increase their workflow and reap from the economic benefits, which could support the employees. Not only would employees receive economic benefits, but they would also be able to work from home providing convenience. However, I do not agree that it will benefit the legal process because there is a difference from the legal industry in the sense video conference can affect the trial proceedings and due process. There could be conquesence in the trial process by not having proper internet service, and the influence of a fast-paced movement that can cause mistakes and unprofessionalism.
 “Defenders Work to Ensure Due Process Amid Pandemic,” United States Courts, accessed July 14, 2021, https://www.uscourts.gov/news/2020/08/19/defenders-work-ensure-due- process-amid-pandemic.
3 “Liability Protections for Health Care Professionals during COVID-19,” American Medical Association, accessed July 14, 2021, https://www.ama-assn.org/practice- management/sustainability/liability-protections-health-care-professionals-during-covid- 19.
4 “Defenders Work to Ensure Due Process Amid Pandemic,” United States Courts, accessed July 14, 2021, https://www.uscourts.gov/news/2020/08/19/defenders-work-ensure-due- process-amid-pandemic.
6 “Defenders Work to Ensure Due Process Amid Pandemic,” United States Courts, accessed July 14, 2021, https://www.uscourts.gov/news/2020/08/19/defenders-work-ensure-due- process-amid-pandemic.
7 Eric Scigliano, “Zoom Court Is Changing How Justice Is Served,” The Atlantic (Atlantic Media Company, April 15, 2021), https://www.theatlantic.com/magazine/archive/2021/05/can- justice-be-served-on-zoom/618392/.
9 Shari Seidman Diamond, Locke E. Bowman, Manyee Wong, Matthew M. Patton, Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions, 100 J. Crim. L. & Criminology 869 (2010)