Medical Negligence and COVID 19

Joey Doe, a bus driver, always wore a face covering when dutifully driving his route throughout the pandemic. For a year he and his family remained safe and virus free, as he drove his bus throughout Brooklyn. So when he felt run down last month he adhered to health protocols and stayed home.

His wife Jane Doe, also feeling run down, went for a COVID test at a local urgent care facility. Anna was overjoyed when she got the results back: “NEGATIVE” it read, in caps and bold faced font. “Should my husband come in?” She asked the doctor. “No, it’s not necessary. This virus is so contagious and spreads so quickly that if you had it he would have it, and if you don’t have it he doesn’t have it. He is OK, trust me. He just needs to stay home and rest for a few days.” Without even seeing Joey, the doctor prescribed him an antibiotic for a presumed bacterial (as opposed to viral) infection.

Ten days later Joey was dead.

When Jane was told he had COVID-19, she went back to her patient portal to take another look at her test results. There it was, at the very bottom, in smaller font: A different patient’s name!

Jane’s results had been swapped with that of a neighbor. She had had COVID all along. So had Joey, and more importantly, he was denied the life saving treatment he so badly needed because of the swapped test results.

Sadly, we are now seeing an alarming number of “swapped” COVID test results throughout Brooklyn. This abject failure on the part of healthcare providers is forging its own surge of COVID infections, and a rash of Covid deaths.

In March 2020, with the pandemic on the rise, Governor Cuomo inserted a provision in the state budget granting healthcare providers immunity from medical negligence. (The immunity provision was modified in early August so as to apply only to Covid related diagnosis and treatment). Thus if a healthcare provider gives substandard treatment for a diagnosed Covid infection, that provider remains immune from liability.

However, the immunity statute permits recovery against healthcare providers who are found to be “grossly negligent” or to have acted with “reckless disregard” for the health and safety of their patients.

Gross negligence is the extreme indifference to or reckless disregard for the safety of others. Giving a patient the wrong test result about a potential life or death diagnosis fits that definition in our view. Prescribing medication to a patient without seeing that patient in person or virtually, or even just taking their temperature, constitutes gross negligence fits that definition too. We believe assuring a patient that they have tested negative without checking the actual test results (as we have seen in numerous instances at one large Brooklyn hospital) also constitutes gross negligence. All New Yorkers deserve to be treated with care and attention, and we are committed to fighting for justice on behalf of these victims of gross negligence.