Editor’s note: Find the latest long COVID news and guidance in Medscape’s Long COVID Resource Center.
By now, concerns about COVID-related lawsuits have faded into the review mirror for most physicians.
But just when COVID lawsuits appear to be dwindling out, legal experts see a new lawsuit risk on the horizon — long COVID claims. While some say it’s doubtful the claims will succeed, the lawsuits could still create legal headaches for doctors in the form of time and money.
Long COVID claims are defined as complaints that allege that a diagnosis of long COVID was missed or delayed and that that caused harm or injury. Lawsuits may also include claims in which patients allege that they were misdiagnosed as having long COVID when they were really suffering from another condition.
So far, a handful of long COVID claims have come down the pipeline, said Peter Kolbert, JD, senior vice president of claim and litigation services for Healthcare Risk Advisors, part of TDC Group.
“This is an area that is emerging as we speak,” Kolbert said. “We are starting to see these claims trickle in.”
In a recent case, for example, a patient sued her primary care physician for negligence, alleging her original SARS-CoV-2 infection was mismanaged and that this led to permanent neuropathy from long COVID. Had the patient been treated appropriately, the patient contends, she would not have developed long COVID or the resulting neuropathy, said Kolbert. An outcome in the case has not yet been reached, said Kolbert, who heard about the claim from a colleague.
The growing lawsuits raise concerns about how courts and juries might decide long COVID claims when so much about the condition is still unknown and best treatment practices are still developing. Research shows that long COVID occurs in at least 10% of cases of SARS-CoV-2 infection, and more than 200 symptoms have been identified. A Kaiser Family Foundation study found that 15% of the US population believe they have experienced the symptoms of long COVID at some point, and 6% of people believe they currently have long COVID.
The risk of long COVID lawsuits underscores the importance of physicians taking proactive steps to protect themselves from liability when treating patients who might have the condition, say legal experts.
“There are legal standards that say new, unestablished scientific principals shouldn’t be first tested by a jury, they should be recognized and established within their [professional] area,” Kolbert said. “While we are seeing lawsuits related to long COVID, I think it is truly putting the cart before the horse, because there needs to be societal recognition that we’re still learning how to define and treat long COVID.”
What Are Patients Alleging?
In the few long COVID claims that have arisen, some complaints have alleged delay in the recognition and treatment of long COVID, according to Kolbert. There have also been claims that physicians failed to refer a patient with long COVID to a specialist in a timely way and that this result in the patient’s experiencing chronic fatigue or a neuropathy.
Fatigue is one of the most common symptoms associated with long COVID, according to recent studies. Other symptoms include postexertional malaise, brain fog, and gastrointestinal problems.
Another rising legal theme is failure to adequately communicate with patients about what long COVID is and what it entails.
Whether plaintiffs who bring long COVID claims will be successful in court remains a question.
Andrew DeSimone, JD, a Lexington, Kentucky–based medical malpractice defense attorney, said he has not seen any claims involving long COVID. He believes a long COVID claim would be challenging to prove, considering the standard of care for treating the condition is still evolving. Plaintiffs in a medical malpractice action must prove that physicians owed a duty of care to the patient, that the doctor breached that duty by failing to conform to the standard of care, and that the breach caused an injury that harmed the patient.
DeSimone also doubts whether juries would be very sympathetic to such plaintiffs.
“There’s a lot of fatigue around COVID still,” he said. “I don’t know if a jury would buy into someone claiming long COVID. I think the claim would have a hard time gaining traction. Not that it’s impossible.”
Another unanswered question is whether legal protections enacted by states during the pandemic might apply to long COVID claims.
Shortly after the pandemic started, most states enacted laws or executive orders that shielded physicians from liability claims relating to the prevention and treatment of COVID-19, unless gross negligence or willful misconduct is proven. The US Department of Health and Human Services published a declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) that provided liability immunity to healthcare professionals for any activity related to medical countermeasures against COVID-19.
Some of these state immunities have since expired. Other states have extended their legal protections for short periods. In Indiana, for example, physicians and businesses are protected until December 31, 2024, from civil tort actions that allege damages arising from COVID-19.
It’s possible that in long COVID lawsuits, physicians would be protected by the immunities unless the cases come after the protections expire, said J. Richard Moore, a medical liability defense attorney based in Indianapolis.
“I could foresee long COVID claims that don’t accrue until after December 2024, meaning it only becomes clear that a patient is struggling with long COVID–related symptoms after that date,” he said. “That could result in COVID claims that do not fall under the immunities.”
Moore said that if long COVID claims become truly problematic, the legislature could extend the immunities.
Other states, such as Washington, have statutes in place that increase the burden of proof for plaintiffs in cases in which care is affected by COVID and/or the treating of COVID. Elizabeth Leedom, a Seattle-based medical liability defense attorney, believes the law would likely encompass long COVID claims if the care and treatment at issue occurred during the COVID state of emergency.
Compliance with current treatment guidelines is likely to be a good defense against any claim of delay/failure to diagnose COVID, including long COVID, she said.
Kolbert, however, doubts that the state immunities would protect against the claims.
“Courts are enforcing qualified immunities as to [traditional] COVID claims. However, I suspect that long COVID claims will fall into a category of traditional medical malpractice claim, such as delay in or failure to diagnose,” he said. In such cases, physicians “may not be able to take advantage of state-qualified immunities. Of course, this will depend upon the language of each states’ qualified immunity provisions.”
As for the statute of limitations, the clock generally starts running either when the alleged negligent conduct occurred or when the patient knew or, in the exercise of ordinary diligence, should have known that they had been harmed by the alleged negligence, Moore said. Statutes of limitations are state specific, but the majority of states mandate a 2- to 3-year limit between the injury and the filing of a claim.
So, while the statute of limitations may be soon expiring for alleged harm that occurred during the pandemic, for patients newly diagnosed with long COVID or who have just discovered associated injuries, the clock may have just started ticking.
How to Protect Yourself Against Suits
Avoiding liability associated with long COVID involves the traditional legal guidance physicians are used to hearing, but with an added factor, Kolbert said.
There always needs to be communication with patients regarding the disease process, but in this area, there needs to be strong communication as to whether patients have had COVID in the past and what symptoms they are experiencing, he said. Physicians should ensure that patients know that long COVID may present in a variety of ways and that there is no definitive test for long COVID.
Physicians should document when the patient has been instructed to follow up and should take necessary steps to ensure the patient returns for follow-up care, he added.
On the opposite side of the spectrum is making sure not to assume a condition or symptom is the result of long COVID, he said. Care should be taken not to diagnose long COVID without excluding traditional causes.
“Ensure that patients know that COVID is not over, per say, and that science supports vaccination,” Kolbert said. “The best defense here is a strong communicative offense, engaging with the patient and thoughtfully charting about this.”
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