Increase of Protection for Health Care Workers

07/02/20

With the addition of Mike Finkelstein to our group, we have added his expertise and experience in the area of personal injury and litigation.

Just recently, the world of medical malpractice law has been turned on its ear. Due to the pandemic, the Governor realized that health care workers should be protected from potential liability.

This protection includes ALL medical professionals -  doctors, nurses, workers in medical and health care facilities, et al. Workers in nursing homes - which have seen an enormous amount of death and serious illness as a result of this virus - will be protected by the Governor's recent order. See attached.

The standard of care for a medical malpractice claim has now increased to a level of  “gross negligence,” rather than the traditional standard of "avoidable error." The definition of gross negligence is an intentional wrongdoing, which evidences a reckless indifference to the rights of others. Unless the person doing the injury is a Hannibal Lecter, this is an impossible burden for patients to meet.

The Governor's order is so broad that almost any action by a medical personnel that causes injury or death will be excused. This creates a very scary dynamic for the public that heavily relies upon health care professionals to properly provide medical assistance. This order will be in effect as long as the Governor continues the State of Emergency, which is expected run at least through the end of this year.

The purpose of the order is to protect health professionals dealing with this novel emergency, as without broad protections no one would be able to seek medical assistance.

In this regard, other states have passed similar exemptions, albeit not as broad as New York's protection of health care workers (such as New York's inclusion of nursing homes). The Governor's decision to protect nursing homes is extremely controversial, as it may appear to be more political than altruistic. Nevertheless, our goal should always be to ensure that our medical facilities, especially for vulnerable senior citizens, are providing the best and safest care possible.

Whether or not the genie was let out of the bottle is something that will have be addressed, as rolling back this exemption may be more difficult. The health profession has never been more in flux than now. As a result, navigating your medical rights has never been more complicated. You should always speak to an attorney to understand your rights