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Spoiler: It's not what most people think Contact Now

COVID-19's impact on medical malpractice cases

Spoiler: It's not what most people think

I keep reading a lot online or in the media about how some are expecting a delusion of medical malpractice lawsuits arriving from COVID-19 care. I’ve told everyone who’s asked me that I don’t see that happening.

Competent, experienced medical malpractice lawyers in Texas realize that one requirement to pursue any medical malpractice case is to produce expert testimony that defines the applicable standard of care. Generally speaking, the standard of care is what a reasonably prudent hospital/doctor/health care provider would have done under the same or similar circumstances.

There’s no doubt that the challenges presented by the coronavirus pandemic are unprecedented. With a novel, highly infectious pathogen one of the most significant hurdles for physicians is to figure out how to treat it. Particularly early on in this plague, the consensus was that there wasn’t a consensus on what to do.

While that is not as true now, as researchers in the medical community have gained substantial experience in treating COVID-19, I believe it would still be a stretch to say that there’s an accepted standard of care. That is why I don’t see a flood of medical malpractice lawsuits alleging substandard coronavirus treatment on the horizon.

There is, though, an interesting side effect on medical malpractice law. We have started seeing this practically every day on numerous clients that call Painter Law Firm for advice on their potential medical negligence and wrongful death cases.

When talking about a new matter with the potential client, one of the very first tasks occupying the attention of skilled Texas medical malpractice attorneys is figuring out what happened that caused the patient to die in a hospital or nursing home setting. More and more, the answer we’re getting from is “we don’t know.”

Think about that for a moment. In my mind one of the most dehumanizing things about the health care industries response to COVID-19 is the draconian ban on patients having a loved one or friend with them while they are admitted to the hospital or nursing facility.

This policy alone flies in the face of my number one recommendation to anyone who will listen: If there’s any way to avoid it, never leave a patient in the hospital alone. Hospitalized patients need advocates who know them to observe the health care that’s being provided, to ask questions when needed, and to summon help when no one is around. In case after case, I’ve seen situations where a tragedy could’ve been avoided if the patient had a family member or friend in the room.

But now that is simply not an option. No family. No friends. No witnesses.

Thus, when a family gets a call that a patient has passed away, they will likely have little to no knowledge about what transpired in the health care or why the death occurred. When there is no autopsy, the mystery is even more confounding. These sad predicaments make it very difficult for medical malpractice lawyer to determine whether the potential case merits review.

What can you do?

Even while hospitals and facilities prohibit family or friends from accompanying admitted patients, it’s still possible to have some remote advocacy. Here are some ideas to consider:

• Coronavirus or not, every adult should have a durable power of attorney and medical power of attorney in place. A durable power of attorney allows a trusted person to make financial and business decisions in your place. A medical power of attorney allows a trusted person to make health care related decisions in your place.

• We also recommend that every adult grant a HIPAA release to the same individual(s) designated as the medical power of attorney. HIPAA is the federal privacy law that prevents hospitals, doctors, and other healthcare providers from disclosing confidential information about patients without written authorization. Armed with a HIPAA authorization, your designated person outside the hospital can call to ask questions to your healthcare providers and request copies of your medical records.

• Consider granting access to electronic medical record or health information portals. Many hospital systems offer these portals, which can be accessed to read narrative notes, lab results, and radiology reports. These can be an excellent source of information for a patient’s off-site advocates. Armed with this information, family and friends can ask intelligent questions and push for any additional healthcare that they feel may be warranted.

If you’ve been seriously injured because of poor hospital or medical care in Texas, then contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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