As a Firm that focuses on defending healthcare clients, in the past several weeks we have been getting more and more calls and emails from our clients seeking guidance with regard to best practices and rising concerns over professional negligence claims in light of the Covid-19 outbreak. This Memorandum is intended to provide healthcare practitioners with a basic understanding of the law regarding medical negligence, as well as advice and recommendations during this healthcare crisis.

I. Medical Malpractice Law Varies by State

As an initial matter, in the U.S., “medical malpractice” or “healing arts malpractice” is defined and governed by the laws of the state in which a healthcare practitioner practices medicine, nursing, or other healthcare discipline. Not every state handles these professional negligence claims the same. For example, many states have some manner of threshold requirement, before a patient can simply march into court and seek damages against a healthcare provider. Likewise, approximately one-half of all states have enacted “caps” on a patient’s recovery for “non-economic damages”—for example “pain and suffering.” A few states have even limited a patient’s recovery for actual economic damages—which could include the costs of future medical care or the costs associated with a long term disability. This memorandum focuses on the laws affecting Illinois practitioners. Over the coming days and weeks we will work to update the information herein to include resources for individuals in other states, as well as to provide names of attorneys also focusing in this area who can be of help to you, wherever you may practice. In the meantime, should you have specific questions or concerns, we recommend that you reach out to your malpractice insurance carrier, your employer’s risk management department, or to an attorney who is knowledgeable regarding the laws in your state.

II. Illinois Medical Malpractice Law—An Overview

In Illinois, as in most states, medical malpractice is a specialized area of “professional negligence” which is governed by State statute and court case law. In order for a patient to file a lawsuit seeking money damages related to care or treatment in Illinois, he or she (or his or her attorney) must first consult with a health professional as to the facts and circumstances of the case. Specifically, the Illinois Code of Civil Procedure provides that the litigant must file an affidavit along with his or her Complaint (initial filing beginning a lawsuit) that he or she has reviewed the facts of the case with a health professional with experience or competence in the subject of the case, and that health professional has determined in a written report, after a review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. 735 ILCS 5/2-622. (The full statute can be found on the Illinois General Assembly website at http://www.ilga.gov).

A patient suing a healthcare professional in Illinois must be able to prove, by a preponderance of the evidence (more likely true than not), that the healthcare professional was negligent in providing care or treatment. A practitioner is deemed negligent where he or she : 1) deviated from an accepted standard of care; and 2) that deviation proximately caused an injury to the patient. In Illinois, standard of care is defined as follows: a healthcare professional must possess and apply that degree of knowledge, skill, and care which a reasonably careful healthcare professional in the same or similar community would bring to a similar case under similar circumstances. In Illinois, standard of care must be established through expert testimony from a practitioner in the same “school of medicine” as the defendant practitioner. Dolan v. Galluzzo, 77 Ill.2d 279 (1979). This means that Illinois courts do not allow a chiropractor to testify as to the standard of care for a medical doctor, a medical doctor generally cannot testify as to the standard of care for a nurse—unless the issue involves communication and/or chain of command. See id. A physician may not necessarily be required to practice in the same specialty as the defendant physician, but he or she must show the requisite education, knowledge, and experience to testify as to the alleged negligence. Proximate cause is defined in the Illinois Pattern Jury Instructions as “a cause that, in the natural or ordinary course of events, produced the [patient’s] injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.” IPI 15.00 (notably—most states use the same or similar definitions but please check with an attorney in your state).

III. Medical Malpractice Considerations During the Covid-19 Outbreak

Anyone who has been watching the developments abroad is justified in having concerns about how to apply the principles above in situations where there may not be adequate tests, treatments, supplies, beds, equipment, PPE, and the like. Stories from Italy and elsewhere have shown that physicians and nurses there have had to make unimaginable choices about things such as who is most likely to benefit from essential treatment. Such a time is relatively unprecedented in the modern world, outside of War.

In working through this crisis, please remember, There is protection in the standard of care itself. Standard of care considers both the community in which you practice, and the circumstances with which you are faced when providing care. Thus, if you are being asked to lend a hand in an area of medicine which you don’t regularly practice—for example the pediatrician who has not intubated an adult patient since her ICU rotation 20 years ago—this is a part of the circumstance. If you are an infectious disease or critical care physician faced with a situation where difficult decisions must be made about likely outcomes, in considering the use of limited supplies or equipment–that too is part of the circumstance. You will only be held to the standard of what a reasonably careful practitioner would have done in the same or similar circumstance.

Additionally, there are a few things that you can do, or keep in mind, that will serve to reduce your risk of claims:

• Know and Follow Your Policies—Federal and state agencies have and continue to set forth directives—know and understand them. Likewise, many health systems have drafted or revised policies in light of the current circumstances. If your health system has a policy regarding Covid- 19, review it and know it. Policies, directives, and guidelines can be used to help define what the standard of care is in a given circumstance. In certain situations, federal and state agency directives or recommendations as well as your own employer/health system polices also can protect you. Thus, if you practice in a hospital that now has, or soon develops a policy regarding: 1) who gets a test, or what measures must be taken before a test is administered; or even 2) how to assess whether a patient gets ventilator support—know the policy. Stay abreast of CDC, NIH, and corresponding state agency guidelines. Remember all of these are likely to change as the situation changes. (www.cdc.gov)
• Charting Remains Important—We all know that the more difficult the shift, the more critical the patients, the more interventions that are needed, the more difficult it can be to chart concurrently and/or comprehensively. If your health system is in the practice of using scribes, from rapid response team calls to daily rounds, utilize them. It is always easier to defend your care, when we can look at the chart after the fact and know exactly what was happening. We have all heard the adage—if it wasn’t charted, it wasn’t done.
• Be Cognizant of Your Own Health—There is no question that you are all being asked to do the extraordinary, in very difficult circumstances. You are likely to be on the front lines of this crisis. Look out for yourselves and each other. Your physical and mental well-being are necessary to the health and safety of the rest of us. Familiarize yourself with the mental health services available to you through your employer or community. Keep an eye on each other. Adhere strictly to universal precautions. We need you.
• What You Do Daily Is More Important Than Any Potential Lawsuit That May Come— While it is difficult not to think about the “what if’s” try not to think about what lies ahead by way of malpractice litigation. When the dust settles, should there be claims, I, and those in my field will be there to support and defend you. In the meantime, what you are doing today, tomorrow, and for the coming weeks, is far more important. Rely on your training. Do the best you can. We are behind you.

Disclaimer: The information herein does not and is not intended to provide legal advice. It is for general informational purposes only and not for the purpose of providing legal advice. The information herein may not be the most up-to-date or comprehensive information available. You should contact your attorney to obtain advice with respect to any particular issue or problem.