Two months into New Jersey shielding front-line medical staff from malpractice liability during the pandemic, a leader at the state’s only direct writer of medical malpractice insurance still has some trepidation about what impact COVID-19 is going to have on malpractice claims.
Eric S. Poe, among several roles and titles, is claims litigation officer for Princeton-based medical malpractice insurance provider NJ Pure. He started fielding phone calls from concerned clients early in the crisis — and he expects, even after the state introduced significant protections for health care workers, to field more.
“One of our groups from North Jersey called me up and said, ‘We’re being asked to man an ICU — they’re traditionally only allowed for physicians that are certain specialists. We’re anesthesiologists,’” he said. “I told them it was going to be hard to defend them at trial later on, when everyone’s forgotten what COVID-19 is, when the average lawsuit takes five years and some kid who was 18 and probably playing ‘Fortnite’ the whole time during it is now on your jury.”
The malpractice expert shared his concern about a landslide of these claims in New Jersey with the Governor’s Office in early April, around the time that New York Gov. Andrew Cuomo issued an executive order providing immunity from civil liability for injury or death during the COVID-19 outbreak.
On April 13, Gov. Phil Murphy signed a similar bill to grant immunity to those on the front lines of COVID-19 care in New Jersey, which Poe described as courageous. Not all states have followed suit.
The policy, which is retroactive to March 9, provides unqualified immunity for hospitals, doctors, nurses and other health care workers from personal injury and wrongful death lawsuits for those treating coronavirus patients.
Extensive as that may seem, Poe said there’s still a lingering worry about who isn’t shielded under this rule: Physicians who aren’t necessarily treating those diagnosed with COVID-19, but still have had their work affected by it.
“I’m not sure it’s even considered a loophole, but there is a small concern people didn’t see, and it’s still not addressed,” he said. “And it’s important, because doctors are choosing to do things they normally wouldn’t do as an indirect response to COVID-19.”
An example Poe gave is a patient who had a surgery scheduled to remove an infection on his or her back.
“As your doctor, am I going to be liable when I say, ‘Right now it’s a minor infection; I don’t want to bring you into a hospital or (operating room) right now and subject yourself to the germs’?” he said. “But, if that surgery was delayed several months and something bad happens with it, like a complicated spinal infection, a plaintiff’s attorney is going to ask why it was delayed to begin with.”
Medical professionals across New Jersey are making tough decisions about what constitutes an emergency worthy of risking COVID-19 exposure in a health care setting, Poe added.
And, do they meet the standards the state has set for civil liability immunity? Right now, the answer is no, because they aren’t directly responding to patients with COVID-19.
“I think that’s a glaring number of doctors that have had to pivot, but have no immunity regardless,” Poe said. “Eventually, because the statute of limitation is two years, there’s going to be questions about what really constituted an emergency or not.”
Poe is anticipating lawsuits from this — just not anytime soon.
There’s that two-year statute of limitation window, and malpractice lawsuits won’t be decided on for another five years after that. Courts have also been largely shut down during the pandemic, so malpractice proceedings are stalled.
“But rest assured, these cases will happen,” Poe said.
