Since the Supreme Court ruling that allowed  healthcare facilities to mandate employee vaccinations, an increasing number of medical professionals have resigned, seeking work in places that do not require them to receive the vaccine. One of the unintentional consequences of requiring employees of healthcare facilities to get vaccinated is that these facilities are now short staffed. In order to combat the issues that understaffing has caused, Health officials have allowed medical professionals who have tested positive and have the COVID virus continue to come to work. Many people are now wondering, if a person catches COVID from their doctor, is it medical malpractice?

Standard of Care

Medical professionals are held to a different standard than your average person, called the “standard of care.” Successful medical malpractice claims have the following elements: the medical professional had a duty of care, the duty of care was breached, the patient was injured, and the injury was a direct result of the breach of care. Proving that a medical professional had a duty of care is the easy part because there is a clearly established relationship between the medical professional and their patient. Proving the duty of care was breached is a different story. In order to prove that there was a breach of duty, the medical professional’s conduct is held up against the conduct of other medical professionals with similar credentials. This means a neurosurgeon’s actions will be measured against the actions of another neurosurgeon.

Has the Standard of Care Changed?

Clearly, a medical professional has breached their duty of care when they come to work with a deadly and contagious disease. But, in the case of the COVID-19 pandemic, it’s not that simple because the standard of care has changed, at least temporarily, due to the circumstances. If a person is choking to death in a restaurant, and a doctor happens to be in the restaurant and is able to save the person’s life with a ballpoint pen tracheotomy, have they violated the standard of care? Certainly, we wouldn’t dream of using a makeshift ballpoint pen tracheotomy in a hospital. However, at a restaurant, under the circumstances, the standard of care is a little different because the doctor did not have access to the appropriate equipment. Because there is such a large shortage of nurses, authorities have decided that the risks of having nurses infected with COVID don’t outweigh the benefits of having a full staff. Just like the doctor in the restaurant decided, the risks of performing a ballpoint pen tracheotomy outweigh the patient’s death.

Proving Who Gave You COVID

It would be pretty difficult to sue a medical professional—or anyone else for that matter—for giving you COVID-19. This is because you would have to prove that it’s more likely than not that the medical professional, and nobody else, gave you the virus. Although it sounds pretty simple, a lot of people are surprised at how difficult it is to prove that it’s more likely than not that the medical professional gave you COVID. The reason this is such a struggle has to do with the fact that patients have contact with so many different people, it’s difficult to be certain who gave the patient the virus–especially with asymptomatic cases. 

Can You Sue the Agencies who Made the Decision?

A lot of people are wondering if there’s any way they can sue the officials who allowed medical professionals infected with COVID to come to work. However, it can be difficult to sue governmental agencies because of governmental immunity. Governmental immunity protects the government and its agencies from lawsuits. Though it can be waived, it’s typically only waived in specific circumstances. So, if the officials who decided that healthcare workers with COVID could come to work were governmental agencies, it would be difficult to sue them. Also, they likely decided that it was better to expose patients to COVID than leave them unattended due to the shortage of healthcare workers.

Why Don’t We Just Bring Back Unvaccinated Employees?

A lot of people wonder why we aren’t just bringing back the unvaccinated nurses who don’t have COVID and allow them to work. Though this may fix the shortage, it may no longer be possible to allow them to come back to work unvaccinated. Part of the Supreme Court’s ruling allowed the mandate that, at certain facilities, employees be required to be vaccinated. Any facility that receives funds from medicare or medicaid needs to mandate that all of their employees receive the vaccine. Since most healthcare facilities receive funds from medicare or medicaid, the majority of medical professionals are subject to this ruling. Therefore, simply bringing back all the unvaccinated healthcare workers may no longer be an option since the Supreme Court has upheld the Secretary of Health and Human Services’ authority to require  healthcare employees to get vaccinated.

Your Medical Malpractice Case

Though we probably cannot help you sue the person who gave you COVID-19, Moxie Law Group does have expertise in the medical field. Our talented team members are experts in handling medical malpractice cases. We can help you win the compensation you deserve after you’ve been injured by a negligent doctor. If you’re ready to file your case, contact Moxie Law Group today.