When reports of a novel virus spreading rapidly through Wuhan, China first surfaced, few would have predicted the way the virus would come to impact every aspect of daily life across the world. However, months after the outbreak’s beginning, we now well know that the impact of the COVID-19 crisis will be felt for many years.

Perhaps no group has been as affected by the pandemic as health care providers. From shortages of personal protective equipment (PPE) to drastic changes in delivery and reimbursement models, the health care industry has experienced drastic upheaval since March. After months of working in the “new normal,” there are still a number of open questions about COVID-19’s impact on the practice of medicine.

Some of the most important open questions revolve around professional liability. Will we see a large number of medical malpractice lawsuits brought alleging failure to properly treat COVID-19? What about cases alleging failure to prevent the spread of the virus amongst patients? How will immunity doctrines and statutes apply to such cases? And most basically, how will such cases be judged – what is the standard of care when it comes to COVID-19?

Medical researchers are still learning more about COVID-19 each day, and there have been very public debates about proper treatments and best practices (the now-famous hydroxychloroquine comes to mind rather quickly).1 If there is not agreement about COVID-19 among the highest levels of the government and science, how will the average physician be judged in a malpractice lawsuit?

Such issues are also quite important for attorneys, particularly those practicing in medical malpractice and health care. This article will seek to examine some of the open questions regarding medical liability in the COVID-19 era. Specifically, the article will focus on issues of the standard of care in the COVID-19 era and the impact of Virginia’s immunity statutes.

I. The Standard of Care and COVID-19

To successfully prosecute a medical malpractice claim in Virginia, a plaintiff must prove that a health care provider owed the plaintiff a duty of care, that the defendant breached the standard of care in the plaintiff’s treatment, and that the breach was the proximate cause of the plaintiff’s claimed injuries.2  The Virginia Code defines the standard of care for defendant health care providers in medical malpractice cases as the “degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth.”3  Va. Code § 8.01-581.20 and Virginia caselaw also make clear that in most medical malpractice cases, the standard of care is established by expert testimony on a case by case basis.4

Though we are now months into the pandemic, physicians and scientists are still learning more about COVID-19 each day. For instance, recently published studies have reported that COVID-19 patients are at a higher risk for stroke than patients with normal cases of the flu.5  Both the Centers for Disease Control (CDC) and the National Institute of Health (NIH) have updated their COVID-19 treatment protocols throughout 2020, and there has been much debate within the medical community about whether treatment protocols once thought effective are in fact beneficial.6 Treatment regimens often need years of study through clinical trials before they can be truly judged as effective or not.

In addition to questions about proper treatment, there have also been well-publicized issues surrounding the proper protocols for preventing the spread of COVID-19 among patients admitted to health care facilities. Given the highly-communicable nature of the virus, this has proven to be an especially major problem in nursing homes, where the elderly patients are particularly vulnerable. Unfortunately, the results of the spread of COVID-19 within nursing homes have been devastating in many cases.7

Just like with treatment protocols, the medical community has learned a great deal about preventing the spread of COVID-19 since the pandemic began in March. While a number of federal agencies including the Centers for Medicare and Medicaid Services (CMS) and CDC have now published guidelines regarding the management of COVID-19 in nursing homes, much of this guidance was not available until well-after the pandemic began.8

All of these questions and developments regarding proper prevention methods and treatments will certainly have an impact on any future COVID-19 malpractice cases. Obviously, it is quite common for experts to disagree as to what constitutes the standard of care in all types of medical malpractice cases. But given the changing landscape of COVID-19, establishing (or defending) the standard of care with expert support may be particularly difficult in cases alleging negligence in preventing or treating COVID-19. Questions such as when the treatment occurred, and what information was available to the provider at the time, will be vital in establishing whether a provider’s actions met Virginia’s “reasonably prudent” standard.

At this time, the author is unaware of any medical malpractice cases filed in Virginia alleging improper diagnosis or treatment of COVID-19.9  There have been lawsuits filed in other jurisdictions, however, including Ohio, Kansas, and New Jersey.10  However, with the COVID-19 crisis is still ongoing and Virginia’s two year statute of limitations for personal injury claims, there is still time for plaintiffs to pursue COVID-19 malpractice claims.

Like many other states, Virginia also has immunity provisions for health care workers who provide treatment during times of disasters and emergencies. Va. Code § 8.01-225.01 states that in the absence of gross negligence or willful misconduct, health care providers who respond to a disaster “by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death claims arising from the abandonment by such health care providers of persons to whom the provider owes a duty of care.”11  The provision of immunity is qualified on the condition that (i) a state or local emergency has been declared and (ii) the provider was unable to provide care to the person because of his response to the disaster. Va. Code 8.01-225.01 also provides immunity for hospitals and other credentialing entities for granting emergency practice privileges during emergencies.12

Va. Code § 8.01-225.02 provides immunity for health care providers who, while responding to a disaster or emergency, are unable to provide “the level or manner of care that otherwise would have been required in the absence of the emergency” due to a lack of resources “attributable to the disaster.” As with Va. Code § 8.01-225.01, the immunity provision of § 8.01-225.01 does not apply in cases of gross negligence or willful misconduct.

Many health care providers had questions about these statutes’ applicability to the COVID-19 crisis. In response to these questions, Governor Ralph S. Northam issued Executive Order No. 60 on April 28, 2020.13  The Order states, “It is apparent that in enacting these provisions, the General Assembly intended to afford health care providers immunity from certain liability in exactly the circumstances presented by the COVID-19 health crisis” and goes on to make certain findings aimed to clarify questions about the statutes applicability. Most basically, Executive Order No. 60 makes clear that the COVID-19 pandemic qualifies as an emergency for the purposes of Virginia Code §§ 8.01-225.01 and 8.01-225.02. It also offers guidance on what constitutes a lack of resources or a response to a disaster for the purposes of the statutes.

Much like the standard of care issue, the impact of Executive Order No. 60 has yet to be seen and will play out as future cases are litigated. Though the Order does clarify certain things, it also leaves room for interpretation. For example, the Governor’s order states that the phrase “responds to a disaster” would include health care providers and institutions who cancelled or withheld certain procedures, consultations, or surgeries to conserve resources during the pandemic. Thus, it seems providers who cancelled elective procedures would have a strong claim that they are entitled to immunity pursuant to Va. Code § 8.01-225.01 if a patient whose procedure was cancelled later sued for malpractice.

However, the same section of the order has an important caveat, as it limits the “responds to a disaster” immunity to cases in which “the delay of the procedure was not anticipated to cause harm to the patient by negatively affecting the patient’s health outcome, or leading to disability or death.” Obviously, this raises the question of whether the provider should have anticipated that the delay would create an adverse outcome. Like other immunity questions, whether the immunity provisions of Sections 8.01-225.01 and 8.01-225.02 will lie in a particular case would be decided by a trial judge in consideration of a plea in bar.14

The General Assembly is also considering numerous bills pertaining to COVID-19 during the 2020 special session which began in August, 2020. One pending bill, SB-5023, seeks to amend Va. Code § 8.01-225.02 to make clear when providers would be entitled to immunity. Though the bill stops short of providing blanket immunity for health care providers treating patients with COVID-19, it would likely extend immunity to additional situations, including those where the provider must adopt “altered standards of care” or “crisis standard of care” due to scare resources or unavailability of supplies or personnel.15  As of the time of writing, none of these bills has yet passed, so health care attorneys will certainly want to review COVID-19 legislation once the session concludes.

By now it is a well-worn cliché to state that we still do not know the impact of the COVID-19 pandemic. However, this cliché rings especially true for health care providers and medical malpractice attorneys evaluating future COVID-19 malpractice lawsuits. If a large number of COVID-19 malpractice cases are filed in the coming months and years, issues of the applicability of immunity and the standard of care will surely make for contested and interesting litigation. Much like the data on COVID-19 itself, the legal standards applicable in malpractice cases will continue to develop as litigation plays out across the Commonwealth.

Davis Powell is a Partner at Byrne Legal Group in Richmond, Virginia. He concentrates his practice on representing health care providers in medical malpractice litigation as well as in government investigations and white collar criminal cases.

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1  “FDA cautions against use of hydroxychloroquine or chloroquine for COVID-19 outside of the hospital setting or clinical trial due to risk of heart rhythm problems.” Food and Drug Administration, July 1, 2020. https://www.fda.gov/drugs/drug-safety-and-availability/fda-cautions-against-use-hydroxychloroquine-or-chloroquine-covid-19-outside-hospital-setting-or. Accessed September 4, 2020.

2 See Brown v. Koulizakis, 229 Va. 524, 532 (1985).

3  Va. Code § 8.01-581.20. 4 See, Raines v. Lutz, 231 Va. 110, 113 (1986) (holding that “expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such deviation was the proximate causes of the claimed damages.”)

4  See, Raines v. Lutz, 231 Va. 110, 113 (1986) (holding that “expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such deviation was the proximate causes of the claimed damages.”)

5  See Risk of Ischemic Stroke in Patients with Coronavirus Disease 2019 (COVID-19) vs Patients with Influenza, Merkler, MD et al., JAMA Neurology, July 2, 2020

6  See Treatment Guidelines Panel, Coronavirus Disease 2019 (COVID-19) Treatment Guidelines, National Institutes of Health, Avalable at https://www.covid19treatmentguidelines.nih.gov/. Accessed Sep. 4, 2020. Besides the often-discussed question of hydroxychloroquine, treatments such as convalescent plasma and corticosteroid therapy have also been considered by the NIH.

7  According to data collected by the CDC’s National Health care Safety Network and published by the CMS, there have been over 207,000 confirmed COVID-19 cases and 51,700 within nursing homes as of August 23, 2020. See, COVID-19 Nursing Home Data, https://data.cms.gov/stories/s/COVID-19-Nursing-Home-Data/bkwz-xpvg/. Accessed Sep. 5, 2020.

8  For example, CMS published its first edition of its “Toolkit on State Actions to Mitigate COVID-19 Prevalence in Nursing Homes” on May 13, 2020. The toolkit is now on its eight version and was last updated in August, 2020.

9  There have been malpractice cases filed in other

10  See, e.g., The Estate of Emily Reardon, through its administrator James P. Reardon v. OhioHealth Crop d/b/a Riverside Methodist Hospital, et al, Case No. 20CV04043 (Franklin County Court of Common Pleas Ohio, filed June 22, 2020); Estate of Joseph Maglioi, Bernard Maglioli, Dante Maglioi v. Andover Subacute Rehabilitation Center, et al, Case No. SSX-L-176-20 (Sussex County Superior Court, New Jersey, Apr. 27, 2020); Greg Paton and Kemela Craigh, as heirs-at-law of Lawden Wayne Patton, deceased v. Clearwater Living LLC d/b/a Clearwater Nursing & Rehabilitation Center, Case. No, 20CV000942 (Sedwick County District Court, Kansas, June 3, 2020). Credit should also be given to Hunton Andrews & Kurth’s excellent COVID-19 complaint tracker, https://www.huntonak.com/en/covid-19-tracker.html.

11  Va. Code § 8.01-225.01.

12  See Va. Code § 8.01-225.01. The credentialing immunity only applies in the absence of gross negligence or willful misconduct and is conditioned on the hospital or entity following procedures for emergency credentialing that are “consistent with the applicable standards of an approved national accrediting organization for granting emergency practice privileges.”

13  Executive Order Number 60: Clarification of Certain Immunity from Liability for Health care Providers in Response to Novel Coronavirus (COVID-19). Governor Ralph S. Northam, Apr. 28, 2020. https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-60-Clarification-of-Certain-Immunity-From-Liability-For-Health care-Providers-in-Response-to-Novel-Coronavirus-(COVID-19).pdf.

14  See, Mann v. Sentara Hosps., 59 Va. Cir. 433 (Norfolk, Sep. 11, 2002) (deciding a plea in bar claiming sovereign immunity); Ola v. YMCA of S. Hampton Rds., Inc., 65 Va. Cir. 456 (Norfolk, Sep. 10, 2004) (deciding a plea in bar claiming charitable immunity).

15  Senate Bill No. 5023, 2020 Special Session I, General Assembly of Virginia.


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