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COVID-19: Top 3 Areas of Anticipated Litigation

COVID-19: Top 3 Areas of Anticipated Litigation

The impact of the COVID-19 pandemic on our nation cannot be overstated. As with many industries and governmental functions, the legal system faces unprecedented challenges. Courtrooms across the country are dark. Depositions, IMEs and dispute resolution efforts have been largely suspended. While some jurisdictions are moving toward opening for business, others are not anywhere close. Coronavirus was practically unheard of outside of public health circles just two months ago. Now, it is the only thing many can think about. The virus has changed many aspects of our personal and professional lives. Already we see the first shots fired in what will very likely be an onslaught of COVID-19 related litigation.

Expertise in a variety of specialized areas will be required to prosecute and defend COVID-19 cases. We highlight the top 3 areas of anticipated COVID-19 litigation and the types of medical expert witnesses needed :

HEALTH CARE PROVIDER/ FACILITY LIABILITY

Perhaps no other industry in our nation has been hit as hard by the virus as health care, inclusive, but not limited to hospitals, doctors/nurses, skilled nursing facilities. Many hospitals have had personal protective gear shortages for staff, resulting in providers becoming ill and transmission among patients as well. Primary care doctors likely will face lawsuits for misdiagnosing the virus as a common cold or flu. And skilled nursing facilities will face lawsuits alleging failure to take proper precautions to stop the spread among residents and staff. Some jurisdictions will seek to impose immunity for certain sectors of the industry from COVID-19 negligence suits, other jurisdictions may not (Illinois, New York, New Jersey, Michigan, Massachusetts, Connecticut have already put in place various forms of immunity for health care providers treating COVID-19 patients).  What is certain is that medical expert witnesses and consultants from the following disciplines will be required to investigate and litigate these claims:  Infectious Disease, Internal Medicine, Family Medicine, Geriatric Medicine, Nursing Home Administration, Epidemiology, Hospital Administration, Nursing.

INSURANCE COVERAGE/ BAD FAITH LITIGATION

Businesses across the nation are scrambling to file insurance claims for business interruption and losses due to the pandemic. Some carriers have reportedly taken the position that these claims do not fall within coverage. Typically, insurance policies for business interruption require that the insured suffer a “physical loss of or damage to property.” Carriers will no doubt seize upon this language to deny coverage, and bad faith claims will ensue. Recently, a restaurant in Florida has retained powerhouse firms Boies Schiller and Podhurst Orseck to pursue a class action against a major insurance company for denying its claim under a business interruption policy covering “all risk” which included “civil authority” coverage. Medical expert witnesses and consultants that will be needed for this type of litigation include:  Occupational Medicine, Infectious Disease, Public Health Officer, Epidemiology.

GENERAL LIABILITY: BUSINESS/COMMERCIAL PROPERTY

Essential businesses such as supermarkets, big box stores, and pharmacies may face an onslaught of claims from customers alleging they contracted COVID-19 because the property was not properly sanitized, was overcrowded, unsafe and not in compliance with state and local mandates.  Non-essential businesses such as hotels and casinos (and cruise ships) also face great risk of litigation inclusive of the aforementioned allegations. Medical expertise in the following areas will be required for litigating these cases: Infectious Disease, Occupational Medicine, Environmental Medicine, Epidemiology, Cruise Ship Medicine.

While much remains uncertain about the course the virus will take, the final extent of its impact on society, and how soon we will emerge from this crisis as a nation, there is no doubt that an onslaught of litigation and claims will flow from this pandemic.  Legal teams and claims professionals need to start consulting with medical experts now to help develop strategic responses to this unprecedented situation. AMFS is the nation’s leading medical expert witness and consulting firm with 30 years of experience partnering with the legal community. Litigating in the COVID-19 arena will be a complex and hard-fought endeavor requiring the best expertise available. AMFS has that expertise at our fingertips. Our Physician Medical Directors are available at no cost to enhance your case strategy discussions and ensure that the best qualified medical expert witnesses and consultants are retained.

Source: Law360

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