As abatement of COVID-19 eases restrictions on in-person court proceedings, medical malpractice litigation has resumed in earnest. In February, our team at Hall Booth Smith tried a multi-defendant, seven-day, $10 million paralysis case in northern Arkansas — something that would not have been possible during the dark days of the pandemic in 2020 and 2021. The case illustrated one of the significant problems caused by the pandemic: delay.
Fortunately, the tsunami of COVID-related cases initially anticipated during the early days of 2020 has not reached the shores of Northwest Arkansas. That is due primarily to the early issuance of executive orders in 2020 and legislation in 2021 conferring limited liability immunity for Arkansas businesses, including medical care providers, difficulty establishing the applicable standard of care and difficulty proving proximate causation between the actions of medical care providers and the contraction and effect of COVID on individual patients because of the virus’ incubation period.
Because the applicable limitations period in medical malpractice cases is two years, medical care providers are still at risk for COVID-related claims of medical malpractice dating back to early- to mid-2020. That’s related to failure to diagnose COVID, delay or denial of “elective” or “unessential” care, “community spread” of COVID in medical care facilities, negligent treatment of COVID and delay or denial of care due to lack of facility capacity or access to medical equipment caused by patient overload. Medical care providers should know their options as these cases are filed.
There are also federal liability immunity provisions. The Public Readiness and Emergency Preparedness (“PREP”) Act authorizes the Secretary of Health and Human Services (“HHS”) to issue a declaration granting limited liability immunity to businesses, including medical care providers participating in response to COVID. PREP Act defenses can be a valuable defense option for medical care providers and should be considered in any case involving issues related to COVID.
Other challenges facing medical care providers in Northwest Arkansas include staff shortages — especially for registered nurses. The tremendous demand for nurses around the United States makes competition for qualified personnel fierce. Increasing numbers of graduating nurses are moving out of Arkansas to take advantage of employment opportunities elsewhere, often with several new staffing companies willing to pay more than many medical care providers can afford. The trend has significant standard of care implications and will likely focus on medical malpractice litigation soon.
Another concerning development for medical care providers is the recent conviction of a registered nurse at Vanderbilt University Medical Center for criminally negligent homicide. The nurse overrode a safety control on an automated medication dispensing cabinet and gave a patient a fatal dose of the wrong medication. Such an outcome raises the stakes for all medical care providers by adding criminal law dimensions to traditional civil law litigation of medical errors. That case significantly hinders the overall defense against medical malpractice claims in civil court and will, inevitably, increase liability insurance premiums for medical care providers and healthcare costs for consumers.
While state and local measures have somewhat addressed COVID immunity issues, the foregoing concerns regarding staffing and the criminalization of medical errors are areas that state and federal legislators should address.
Arkansas has a checkered history regarding “tort reform” and lags behind many other states in protecting medical care providers from onerous medical malpractice claims. Hopefully, lawmakers will consider legislation during the next state and federal legislative sessions to help medical care providers adjust to these rapidly changing, post-pandemic times.
Jason Hendren is an attorney and the managing partner of Hall Booth Smith in Rogers. He can be reached at 479-391-6202. The opinions expressed are those of the author.