Coronavirus (COVID-19) And Medical Malpractice – Part One

During these concerning times, when there is so much information about the coronavirus (COVID-19) that is unknown and unknowable, it is important to not overreact, to stay calm, to stay informed from reliable sources, to minimize our exposure, and to support each other in ways that can help us get through this together with minimal disruption in our daily lives and minimal health effects on our families, friends, and neighbors.

Nonetheless, there will be legal consequences, both known and unknown, that will flow from this virulent virus. We will not be surprised if there are medical malpractice claims arising out of the improper and untimely diagnosis and treatment of the disease in the future. In the future, there may be procedures and limitations controlling coronavirus medical malpractice claims that may take years to enact, apply, and resolve. However, there are current laws that may affect coronavirus medical malpractice claims.

Emergency Management Assistance Compact (“EMAC”)

The Emergency Management Assistance Compact was entered into by Delaware, Florida, Georgia, Louisiana, Maryland, Mississippi, Missouri, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, and West Virginia. The Compact was consented to by the U.S. Congress on October 19, 1996 (PL 104-321). The Compact was subsequently enacted in all 50 U.S. states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands.

The Compact states: “The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency disaster that is duly declared by the Governor of the affected state, whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack.”

The Compact provides for “mutual cooperation in emergency-related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states’ National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.”

The Compact provides: “Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers, except that of arrest unless specifically authorized by the receiving state, duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state emergency or disaster by the governor of the party state that is to receive assistance or upon commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect, or loaned resources remain in the receiving state, whichever is longer.”

How may the Compact affect coronavirus (COVID-19) medical malpractice claims? The Compact provides: “Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes. No party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.

Source

Now that emergency declarations have been made both at the federal level and by many state governors arising from the spread of COVID-19 throughout the United States, it may be that the immunity and enhanced protections provisions of the Compact may either limit or preclude some medical malpractice claims arising out of COVID-19. Since there is a “good faith” exception to liability, and “good faith” “shall not include willful misconduct, gross negligence, or recklessness,” unless those higher standards can be established in the medical malpractice context, there may not be medical malpractice liability under such circumstances.

If you or a loved one have suffered serious harm as a result of medical negligence in the United States, you should promptly find a medical malpractice lawyer near you who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Tuesday, March 17th, 2020 at 5:21 am. Both comments and pings are currently closed.

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