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Medical Malpractice and COVID-19 in North Carolina

We are living through historic times, a global pandemic. COVID-19 has killed more than 4 million people worldwide with over half a million of those being United States citizens. It has wreaked havoc on many aspects of our daily lives, and in particular, our healthcare system. 

During the height of the pandemic, due to shortages of equipment, space and personnel, medical professionals and health care facilities were forced to make impossible decisions about which patients to treat. They were essentially deciding who would live and who would die. That is an impossible situation to be in and led to medical providers and health care facilities being wide open to medical malpractice lawsuits.  

States scrambled to deal with this unchartered territory and to do their best to protect both their citizens and their healthcare providers. In March of 2020, during the height of the pandemic, Governor Cooper signed Executive Order No. 116 which declared a state of emergency in North Carolina due to the COVID-19 pandemic. Shortly after that, on May 2, 2020, North Carolina’s General Assembly passed the COVID-19 Recovery Act which, among other things, provided medical malpractice immunity to medical providers and facilities under certain conditions. 

COVID-19 Recovery Act 

The COVID-19 Recovery Act specifically provides that medical providers and health care facilities “shall have immunity from any civil liability for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services.” According to Section 3D.7.(b) of the Act, it was intended to remain in effect for as long as Executive Order 116 was in effect and “any subsequent time period during which a state of emergency is declared to be in effect during calendar year 2020 by the Governor in response to COVID-19.”

The language and intent conflict here - the intent was that there be immunity from medical malpractice suits as long as necessary while the pandemic raged, however the language provided for immunity only during calendar year 2020. This led to some confusion and concern in the medical field in 2021 as it became clear that the pandemic was not over. In March of 2021, the General Assembly clarified its intent by rewriting the language of section 3D.7.(b) to “any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19. (emphasis added)

The General Assembly’s clarification was a welcome relief for medical providers and health care organizations but a cause of concern for those prevented from bringing medical practice claims. 

Challenge to the COVID-19 Recovery Act

Some people feel that the Act went too far in providing immunity, specifically in situations where a person was not treated for COVID-19. One of the first attempts to challenge COVID-19 laws enacted by legislatures across the country happened in North Carolina. In Howze v. Treyburn Rehabilitation Ctr., LLC et al, four sisters filed a medical malpractice case in Superior Court in North Carolina after their mother died in a nursing home.  

In the Howze case, the family of Palenstine Howze, a woman who had been living in a nursing home, alleged that Ms. Howze died after a wound became infected and the nursing home failed to transfer her to a hospital for treatment. The Howze family argued that by refusing to transfer their mother, the nursing home breached the duty of care owed to patients, which is an essential component of any medical practice claim. The nursing home denied that it had breached the duty of care and that the family ever requested that Ms. Howze be transferred to the hospital.

In February 2021, Superior Court Judge Orlando Hudson, Jr. dismissed the case, granting the nursing home’s Motion to Dismiss for failure to state a claim upon which relief can be granted. At the writing of this article, the case is being appealed. 

 Ms. Howze did not die from COVID-19, rather the cause of her death was listed as dementia. When the family initiated the suit, the COVID-19 Recovery Act did not exist. However it was passed shortly thereafter and because it contained a provision making it retroactive, it became a key part of the case. 

Does the COVID-19 Recovery Act, and the Dismissal in Howze, Mean that North Carolinians Can No Longer Bring Any Medical Malpractice Suits During COVID-19 Times?

No. Although the Act is broad, it does not provide a blanket medical malpractice immunity to all medical providers and facilities in all situations. First, the care provided must have been provided for, or related to, COVID-19.  As shown by Howze, this does not mean that the treatment was necessarily for COVID-19. Rather, the actual treatment and/or decisions made about treatment, must have been made because of COVID-19 conditions. Second, there is no immunity for medical providers, or healthcare facilities, if their actions constituted gross negligence, recklessness or intentional infliction of harm. For example, if a scheduled knee surgery (so not COVID-19 related) was cancelled because of COVID-19 (lack of space, lack of physicians, lack of medical supplies, etc.) and that led to the patient's harm, there would likely be immunity for the medical provider and/or healthcare facility, as long as the decision to postpone the surgery was made in good faith. If however, the doctor knew that delaying the surgery would cause the patient to lose his/her leg, then there would likely be no immunity. 

Bringing a medical malpractice claim can be difficult in any climate, but bringing one for treatment that occured during, or related to, the pandemic may now be even more difficult. It is not impossible though, and an experienced medical malpractice attorney can help you navigate the new legislation and determine if you have a claim. 

Let Our Charlotte, North Carolina Medical Malpractice Attorneys Review Your Case

If you have a medical malpractice case, the Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you understand your rights and whether or not there is negligence to proceed with a medical malpractice claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

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