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Keeping Current with COVID and Medical Malpractice Insurance

As the Covid Delta variant represents the latest form of the evolution in the COVID pandemic, the status of how states are handling COVID malpractice cases are evolving, as well.

COVID Medical Malpractice Lawsuits?

Once thought to be a possible litigation trend when the covid pandemic first began, the litigious part of the pandemic has yet to rear its head. According to Lori Semlies, co-chair of Wilson Elser’s medical and health care practice firm, who also is the co-chair and founder of the firm’s COVID Task Force, earlier in 2021 there were less than 300 lawsuits in the U.S. against long-term care providers, mainly nursing homes. Semlies is an attorney that represents the senior care industry.

“People expected more, but the statute of limitations has not expired in most states where it is two or three years for wrongful death or malpractice, so it is too soon to be drawing any conclusions,” Semlies said. “It is evolving constantly, as is the virus. Six months ago, we did not think we would be here, and as the virus evolves, so do the law and the business of bringing lawsuits.”

Medical Malpractice and Covid Immunity Laws in the States?

Not surprisingly, COVID medical malpractice and immunity insurance laws vary from state to state, as some states offer no immunity, others offer federal immunity, while other states offer immunity for diagnosis and treatment. Changing laws has also been common from the states, as the state of New York has already changed statutes three times.

The question of whether the issue of litigated COVID malpractice is a states’ rights issue or a federal issue could become just as much of a part of the pandemic business landscape as remote work and home delivery services. According to Semlies, the states have been winners of the early legal battles on jurisdiction.

“Most cases have been ruling against federal jurisdiction,” she said. “There have been a couple of outliers but there has definitely been a trend in rulings towards the states.”

Medical Insurance Claims and Government Response

Semlies notes that the federal government has taken its stance of fighting this category of medical malpractice suit behind The Prep Act, a federal immunity statute developed in anticipation of an emergency when civilians need to react with countermeasures to fight off a pandemic or other emergency, which includes immunity for countermeasures of injuries during vaccine distribution or manufacturing.

Medical insurance industry insiders and stakeholders look closely for rulings on the east coast that could set trends and legal precedent in the two years before the initial statute of limitations expires from the original outbreak.

“A recent case in the eastern district that received a lot of attention ruled in favor of the state court with the judgement that there is no federal court jurisdiction,” Semlies said. “But you have to keep a close eye on the cases as a whole, because every day the laws and the pandemic are evolving.”

Semlies will be speaking at the Crittenden Medical Insurance Conference on September 26-28, 2021.
For more information, visit https://www.crittendenmedical.com.

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