Mitigating COVID-19 Malpractice Claims

Mitigating Malpractice Claims Related To COVID-19

Undoubtedly, along with the COVID-19 pandemic will come a wave of malpractice lawsuits where the theory of negligence against the provider will be based on the treatment provided. We expect to see at least the following theories: failure to diagnose, failure to treat and failure to treat in a timely manner. Much will depend upon the creativity of plaintiff attorneys; however, we are already seeing COVID theories related to non-COVID issues, such as failure to monitor a patient post-operatively which allowed a patient to contract the virus. We offer below some suggestions for our clients.

To prevail in a medical malpractice case the plaintiff must prove that the physician or provider:


  • had a duty to provide care according to a certain standard

  • strayed from that standard, and

  • due to the physician or provider’s conduct,

  • caused an injury to a patient.


To protect you from malpractice claims and to place yourself in a strong defense position, thorough documentation is critical. You should operate under the assumption that a judge or jurors will conclude that if something is not documented it was not done even if it was, in fact, done.


We offer the following suggestions to help you mitigate your risk:

  • Use a waiver form. Providers are well advised to consider updating their patient consent forms for patients receiving care and treatment during the pandemic. These forms should include an acknowledgement of the potential risks of becoming infected with COVID-19.

  • Always document the events of a patient encounter including at least: date, time, signs and symptoms, plan of treatment, recommended follow up, patient’s understanding and agreement. If you change your plan of treatment that should also be documented in the medical record. Such documentation should include instructions provided via telephone.

  • Have the patient sign discharge or other instructions indicating understanding and agreement.

  • Document failure to follow up. Reach out to the patient via phone and in writing to state that the patient has not followed up as recommended. Note that such communications must be confidential due to HIPAA and privacy laws.

As always we are available to assist with any of the above. For further information, please Contact Us.

Articles distributed by Malecki & Brooks Law Group, LLC are advertisements and summaries for general information and discussion purposes only.  They are not full analyses of the matters presented, legal, or otherwise, and may not be relied upon as legal advice. 





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