COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations - Causation Issues (Part 4)
ABSTRACT: As the U.S. deals with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future.
In part four of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider causation issues for healthcare associated COVID-19 infections.
General Infection Causation Issues
While every corner of American commerce, including food suppliers and sellers, financial institutions, childcare providers and fitness centers, may face increasing liability claims from customers and third parties claiming to have been exposed to COVID-19 during a visit to their premises, in most cases, proving that an infected person caught COVID-19 from a specific source should be a difficult task, especially considering the known virus viability outside the body and incubation time (the time between contracting the virus and onset of symptoms).
According to a study published in the New England Journal of Medicine, SARS-CoV-2, the virus that causes COVID-19, can live in the air and on surfaces between several hours and several days. The study found that the virus is viable for up to 72 hours on plastics, 48 hours on stainless steel, 24 hours on cardboard, and 4 hours on copper. It is also detectable in the air for three hours. After interaction with an infection source, most estimates of the incubation period for COVID-19 range from 1-14 days, with most infected individuals exhibiting symptoms around five days. Given the difficulty tracking all interactions of an infected person during the combined length of time between virus viability outside the body and incubation, narrowing the source of infection to one source and effectively ruling out all other possible acquisition more likely than not to a reasonable degree of certainty will likely be a difficult task.
Causation Issues for Healthcare Associated COVID-19 Infections
Nosocomial or healthcare associated infections are infections acquired during care which are not present or incubating at admission or treatment start. Nosocomial infections have been a reality since the origin of medicine and have been the object of litigation for some time. Undoubtedly, the COVID-19 pandemic will result in numerous lawsuits alleging that a healthcare provider’s negligence led to infection during treatment. However, given that most infections are asymptomatic for some time after their onset, it can be very difficult to identify with precision whether the infection was indeed contracted after admission or whether the patient was infected before admission but asymptomatic. Several agencies and authorities have attempted to identify time parameters for establishing what generally constitutes a nosocomial infection. For example, the World Health Organization (“WHO”) “usually” considers infections occurring more than 48 hours after admission to be nosocomial. However, the “usual” qualifier in the WHO’s definition allows a case-specific analysis of whether an infection can be deemed nosocomial. Thus, the WHO’s 48-hour cutoff, or any other third-party’s definition is not likely to apply to alleged COVID-19 infections given the longer incubation time discussed above.
For long-term care facilities, although a complete causation defense may be complicated by a resident’s likely admission predating the COVID-19 outbreak, providers should still attempt to establish a causation defense that a resident cannot prove virus transmission to a reasonable degree of certainty after the facility knew or should have known of the risk of COVID-19 transmission and before the recommended precautions were instituted. In support of this strategy, the Centers for Disease Control (“CDC”) has recognized that long-term care residents with COVID-19 may not report common symptoms like fever or respiratory symptoms, and some may not report any symptoms at all. The CDC acknowledges that unrecognized asymptomatic and pre-symptomatic infections likely contribute to transmission in long-term care facilities. These two CDC-recognized factors should strengthen a causation defense utilizing the above strategy.
Our prior posts in this series can be found here (part 1), here (part 2), and here (part 3).
related services
About Healthcare Law Blog
Baker Sterchi's Healthcare Law Blog examines issues of interest to healthcare providers in emergency departments, hospitals, private practice, ambulatory surgery centers, pharmacies, urgent care centers, EMS, long term care facilities, home health care and more. Learn more about the editor, John Mahon, and our Healthcare Law practice.
Subscribe via email
Subscribe to rss feeds
RSS FeedsABOUT baker sterchi blogs
Baker Sterchi Cowden & Rice LLC (Baker Sterchi) publishes this website as a service to our clients, colleagues and others, for informational purposes only. These materials are not intended to create an attorney-client relationship, and are not a substitute for sound legal advice. You should not base any action or lack of action on any information included in our website, without first seeking appropriate legal or other professional advice. If you contact us through our website or via email, no attorney-client relationship is created, and no confidential information should be transmitted. Communication with Baker Sterchi by e-mail or other transmissions over the Internet may not be secure, and you should not send confidential electronic messages that are not adequately encrypted.
The hiring of an attorney is an important decision, which should not be based solely on information appearing on our website. To the extent our website has provided links to other Internet resources, those links are not under our control, and we are not responsible for their content. We do our best to provide you current, accurate information; however, we cannot guarantee that this information is the most current, correct or complete. In addition, you should not take this information as a promise or indication of future results.
Disclaimer
The Healthcare Law Blog is made available by Baker Sterchi Cowden & Rice LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your use of this blog site alone creates no attorney client relationship between you and the firm.
Confidential information
Do not include confidential information in comments or other feedback or messages related to the Healthcare Law Blog, as these are neither confidential nor secure methods of communicating with attorneys. The Healthcare Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.