Malpractice Mitigation: Utilizing Professional Standards as a Defense to Claims of Negligence in Epidemic/Pandemic Events

Since the start of the COVID-19 pandemic, there has been one constant--uncertainty. What we think we know is in a state of flux as we gain more and more first-hand knowledge of how the virus operates. This, understandably, leads to confusion in which our understanding of how to stay healthy and safe remains somewhat illusive, for both medical professionals and laypeople alike. There is a daily sea of information and sound bites provided by the media, elected officials, and local and national health professionals; information that is sometimes contradictory. Medical professionals must wade through information daily in order to improve upon the practice and treatment of their ill patients. This begs an important question: What does it mean to the medical professional providing critically-needed medical services when the typical best practice "rules," protocols and standards simply do not fully exist yet due to the "novel" nature of COVID-19?

            While the potential for liability exists for all physicians on a day-to-day basis, this potential increases exponentially with the onset of an epidemic, pandemic or the occurrence of a disaster, whether natural or manmade and even more so when that pandemic involves a new and novel pathogen. For the purposes of this article, the authors focus exclusively on the potential liability borne by physicians and other medical professionals during those times in which their patients are exposed to and/or infected by a disease due to an epidemic/pandemic event such as the present novel COVID-19 crisis. More »

Best Practices for Cyber-Resilience in Uncertain Times

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Cyber resilience is an essential component of modern-day life in corporate America.  It is critical that companies of all sizes take reasonable steps to prepare for an adverse cyber event that is, in all likelihood, inevitable in today’s business climate.  The COVID-19 pandemic has brought with it a heightened cyber threat to companies that have increasingly embraced remote employment, as well as to critical industries including medical manufacturers and suppliers, financial services, healthcare, and others.  Industry data indicates that cyber criminals have recently increased phishing campaigns and malware attacks.  In times such as these, it is prudent for a company to evaluate its cyber-risk management and resilience practices – its ability to execute and deliver its business function following an adverse cyber event. More »

COVID-19 Pandemic Negligence Claims: What is the Standard of Care When There is No Precedent?

I. Introduction

While the world is rightly focused on stemming the spread of the COVID-19 virus, the future holds a lot of uncertainty and unanswered questions.  How bad will the pandemic become and how many lives will be lost?  Will the world see waves of COVID-19 outbreaks in the future?  Will medical researchers develop a treatment or vaccine to manage COVID-19?  How long will humans have to engage in social distancing?  How will the current pandemic impact the world economy, and will we fall into a global recession?  Far down the list of questions surrounding the COVID-19 pandemic is whether the crisis will result in a flood of negligence claims filed by individuals afflicted with coronavirus illnesses against a host of potential defendants, including medical providers, nursing homes and senior care facilities, businesses and premises owners, individuals, private schools and universities, and personal protective equipment manufacturers, to name a few of the potential targets.  More likely than not, the answer to this question is that yes, negligence claims against these and other classes of defendants will follow.  The thought of that probably leaves a lot of people uncomfortable, since many of these potential defendants are the ones working tirelessly to treat those suffering from coronavirus illnesses and to protect the rest of society from getting sick. 

How these negligence claims will be treated remains to be seen, and while the black letter law for negligence is well-developed in the United States, never has negligence law been examined in the era of modern litigation in a situation like the current one, where quick action is necessary, so many lives are at risk and those who are most vulnerable to liability are also those acting in good faith and selflessly to help others.  The standard of care applied to defendants named in COVID-19 negligence claims will play a major role in the outcome of these future cases and will greatly impact the ability of defendants named in those cases to minimize their liability.  More »

COVID-19 and Business Interruption Claims Under Commercial Property Insurance

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As COVID-19 cases continue to rise in the United States our first thoughts are with those immediately affected and how we all can help slow its further spread. The toll the disease has already taken worldwide is significant, and at present it is hard to predict the ultimate cost both in lives and to our economy.  We are confident that the virus will be brought under control, but in the meantime, our clients will face a multitude of questions regarding potential insurance coverage for losses arising from COVID-19 mitigation efforts. This post considers the potential arguments for and against coverage for COVID-19 business interruption losses under typical commercial property coverages. More »

Communicable Diseases and the CGL Policy

How could disease outbreaks impact commercial property and general liability insurance?  The CGL policy will typically address a disease pandemic under three areas of exclusion within the policy: (1) Bodily Injury Exclusion; (2) Business Interruption Exclusion; and (3) the Pollutant Exclusion. Courts throughout the country treat these exclusions very differently and therefore counsel should be consulted to assist the claims unit and potentially underwriting in applying the policy to a coverage request under the policy.

The standard commercial general liability policy includes “disease” under its definition of bodily injury. Barring any coverage-altering endorsements (and depending on the state and the specific terms of the policy), it would appear that there is a debate as to coverage if an insured is found liable for accidentally helping spread a disease; for example, if a music venue did not take adequate precautions to halt the spread of an infectious disease on its premises. McMahon, Lucian, "Commercial insurance, diseases, epidemics." Insurance Information Institute, The Triple-I Blog. April 12, 2017. But just as with commercial property policies, liability policies often include pollution exclusions. How pollution is defined – and how broadly a court will interpret the scope of the exclusion – will all impact whether liability arising out of a disease outbreak is covered or not. Id. A policy may also include exclusions for any liability arising out of communicable diseases, just like the exclusions found in personal liability insurance policies. Id. More »

COVID-19: Coverage Impact for Workers Compensation and Employers Liability Insurers

As the world  responds to the current coronavirus pandemic, also known as COVID-19, insurance companies will now, more than ever, be looked upon to respond to the widespread impact on businesses in all industries, including the impact on employees, their families and customers. It is a virtual certainty that in the coming days and months, employers will face an avalanche of claims relating to exposure to COVID-19. Those employers may look to their Workers Compensation and Employers Liability policies for coverage. Part One of a standard Workers Compensation policy provides coverage for an employer's statutory liabilities under workers compensation law, while Part Two provides coverage for liabilities arising out of employees' job-related injuries that are not otherwise covered under workers compensation law(s). More »

Florida Office of Insurance Regulation Issues Informational Memorandum on Insurer Continuity of Operation Plans on COVID-19

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On March 16, 2020, the Florida Office of Insurance Regulation ("OIR") issued an Informational Memorandum OIR-20-03M.  In that Memorandum, the Commissioner urged all regulated insurers to heed the guidance memos from the Centers for Disease Control and Prevention ("CDC"), as well as the Florida Department of Health ("DOH"), for businesses and employers. All companies regulated by the state OIR are required to review and update all Business Continuity Plans and/or Continuity of Operations “immediately”.  Such operations as policy issuance, premium collection, claims adjustment and payment, and policyholder services, must account for DOH and CDC guidance surrounding COVID-19. The OIR required immediate notice to the department by any regulated insurer, if that insurer has had to activate its Business Continuity or Continuity of Operations plans. Insurers must advise the DOI the date the plan was activated, and the name, phone number and email address of the company’s point of contact for continuity plan activation. Further, if in response to COVID-19 any business operations are compromised to the extent it may jeopardize ability to provide essential services to policyholders the company must immediately notify the DOI, by providing detailed information regarding the extent to which business operations are compromised, including how it impacts policyholders, and provide the name, phone number and email address of the point of contact for that issue.

COVID-19 and Families First

Coauthored by: Matin Fallahi, Law Clerk

In response to the recent COVID-19 pandemic, which has caused economic distress in a short period of time, the United States House of Representatives passed the Families First Coronavirus Response Act (“FFCRA”). After approval from the Senate, the President officially signed the act on Wednesday March 18, 2020. This Act and its long-term impacts are just as unknown as the virus itself.

The legislation provides free coronavirus testing and paid emergency leave for those diagnosed with COVID-19 or those caring for a family member with the virus. The FFCRA applies to any employer with less than 500 employees in hopes to help mitigate the impact of the pandemic in the United States while also providing a sense of hope and security for employees. As such, the Act will largely impact small to medium businesses who previously did not have to provide paid leave under the Family Medical Leave Act (“FMLA”). More »

Staying Afloat: Berthing a Liability Defense to COVID-19 Claims

Cruise lines are once again in the line of fire as another pathogen wreaks havoc around the globe. As the number of COVID-19 (otherwise known as the “Coronavirus”) infections accelerates globally, the cruise industry may be one of the virus’ largest victims. At present the Grand Princess, which has been on lockdown is set to dock in California, after which its passengers will be transported and quarantined at a military facility as a result of the positive Coronavirus findings onboard. Meanwhile, a second Princess cruise ship—the Caribbean Princess will remain anchored offshore of Fort Lauderdale until further notice while two crew members are tested for the Coronavirus. The Regal Princess was finally allowed to dock in Fort Lauderdale after two of its crew tested negative for the virus. More »

CYBER RISK CLIENT ALERT: Facebook Settles Its BIPA Suit for $550 Million While Damage and Jurisdiction Issues Remain

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All eyes are on the recent settlement in Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019), where a group of class-action plaintiffs (“Class”) alleged that Facebook violated Illinois’ Biometric Information Privacy Act (“BIPA”). Patel had already received a lot of attention primarily because the Ninth Circuit found Article III standing in the absence of actual harm.

Patel settled for a massive $550 million. This is the largest cash settlement seen in a privacy-related suit according to the parties, which is creating a lot of new-found interest in BIPA with speculation on how the settlement amount will impact future claims. More »

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