The Coronavirus drastically changed our world and societal structure in a short period of time. As we shelter in place and many businesses remain closed, medical professionals and other essential employees continue to work around the clock, some with insufficient personal protective equipment (PPE).
Throughout the pandemic, you might have heard the occasional news story about certain businesses attempting to stay open or large gatherings where the virus spread among a group of people.
Within these scenarios, the possibility for negligence arises. In these trying times, consider the following situations and recent changes that could point to a business or other entity acting carelessly.
Businesses Not Taking Precautions
When states started to institute shelter-in-place orders, some entities not included on the approved list claimed they provided an essential service and tried to stay open. Some restaurants tried to argue they could still offer inside seating to a limited number of people spaced six feet apart.
As a result, one factor has emerged: Businesses that remain open have to practice a greater duty of care toward customers and employees to reduce exposure and stop the spread of COVID-19.
One prominent claim that a business did not follow through with this duty of care occurred at the beginning of the outbreak. Passengers on board a Princess Cruises ship sued parent company Fairline Shipping on the grounds that allowing a COVID-19 passenger on board a trip to Mexico on February 11 may have exacerbated its spread.
According to the lawsuit, a passenger bound for Mexico reported respiratory symptoms after a week on board. The Grand Princess ship returned to California, then departed for Hawaii on February 21 with a group of new passengers; 62 individuals from the Mexico cruise remained on board. The passengers filing the lawsuit allege:
- In spite of the original carrier’s symptoms, the ship was not disinfected.
- Passengers on the first cruise were not screened for symptoms
- Passengers were not notified of the exposure until four days after returning home.
- Princess Cruises did not institute additional sanitary precautions until March 3, a day before California declared a state of emergency.
- Had they known about the previous exposure, they wouldn’t have boarded the trip to Hawaii.
- They experienced severe emotional distress due to the fear of contracting COVID-19 on board.
The delay to begin sanitation procedures could be seen as an act of negligence. Businesses that remain open may create risks for their customers and workers by:
- Knowingly violating shelter-in-place orders.
- Serving food to customers inside a restaurant.
- Not taking proper precautions to keep the premises safe.
- Not following CDC and OSHA recommendations to reduce the spread.
While businesses owe their patrons a greater duty of care, workers and customers also need to be mindful of their actions. Especially within the context of contributory negligence, customers should not willingly place themselves in a situation where they could be exposed or expose others to COVID-19.
COVID-19 Changing the Rules of Medical Malpractice
Doctors, nurses and other healthcare professionals have been working round-the-clock in abnormal, unsafe conditions. In turn, due to the lack of PPE available, many have become carriers themselves. As a result, medical professionals have requested legislation that revises the definition of negligence and malpractice.
Along with having to reuse PPE and take care of multiple COVID-19 patients, many medical professionals are being asked to practice outside their field of expertise.
A few states, including New York, New Jersey and Michigan, have already passed legislation that raises the medical malpractice standards from negligence to gross negligence, an extreme deviation from expected care.
Illustrating this scenario, a report in Reuters points to a lack of ventilators, affecting how medical professionals resuscitate patients. Due to bed shortages, patients who would be kept in a hospital for testing and overnight observation for non-Coronavirus conditions are being sent home.
The American Medical Association has also compiled a list of national measures addressing the extreme situation for many medical professionals:
- H.R. 748, the “Coronavirus Aid, Relief and Economic Security Act” (CARES Act), addresses medical professionals providing voluntary services, including diagnosis and care related to COVID-19, reducing their liability – except in cases of gross negligence and criminal misconduct.
- The Public Readiness and Emergency Preparedness Act (PREP Act) offers immunity to healthcare professionals utilizing countermeasures to treat COVID-19.
- The Volunteer Protection Act of 1997 (VPA) extends liability protections to volunteer medical professionals working for nonprofit or government organizations, provided the volunteer is properly licensed or certified and does not commit an act of gross negligence or reckless misconduct.
In a Nursing Home Setting
In March, the CDC and CMS revised their recommendations for addressing disease outbreaks in nursing homes, requiring facilities to strictly limit visitation, reduce group interactions within homes and take more significant precautions when sanitizing spaces. Yet, many nursing homes have turned into Coronavirus hotspots.
In Florida, multiple nursing home residents tested positive and the facility in question was accused of not following CDC recommendations. Allegedly, the facility was not screening all staff members and employees with respiratory symptoms continued to work in the facility.
Do Products Work As Claimed?
Hand sanitizer and Clorox wipes have been in short supply following claims they help reduce the spread of COVID-19. Yet back in January, the FDA issued a warning to Gojo Industries, stating no significant scientific studies back up their product’s claims.
For years, Gojo has stated that Purell’s Healthcare Advanced Hand Sanitizer, an ethyl alcohol-based product, helps protect against the flu and other illnesses, including norovirus and Ebola. In response, plaintiffs filed a lawsuit in a California federal court, claiming Gojo is violating consumer protection laws with their unapproved claims.
Germ-X, an alcohol-based hand sanitizer with a nearly identical formula, was also served with a lawsuit claiming the company has used false claims and deceptive marketing to sell its product.
The lawsuits allege these unsupported statements resulted in consumers buying thousands of units and price gouging products, thus violating California’s false advertising and unfair competition laws.
Were you or a loved one exposed to COVID-19 by a negligent business or nursing home? Did you rely on a manufacturer’s false claims to protect your health? No entity should be jeopardizing consumer health to make a profit. If you believe you have a negligence claim related to COVID-19, contact Trantolo & Trantolo’s personal injury lawyers today.
