Coronavirus (COVID-19) Injuries & Lawsuits

The novel coronavirus has disrupted many aspects of everyday life, and the legal world is no different.

As concerns about the spread of the virus have escalated, many federal and state courts have closed or limited access, transitioned to remote operations, extended filing deadlines, and postponed trials and other less-urgent matters.

Law firms and attorneys have been impacted as well. Many personal injury firms have had to let go of staff and transition to working remotely.

Despite these significant disruptions, you must remember that your personal injury case is important. If you've been injured in an accident, you may be in severe pain, unable to work, and facing mounting medical bills. You may be relying on the resolution of your case to move on with your life. For these reasons, your personal injury case shouldn't be put on hold for the coronavirus or anything else.

So what can you do to make sure your case continues toward a satisfactory resolution in the middle of a pandemic?

The first thing you can do is take a hard look at the law firm currently representing you and determine whether it's capable of handling your case right now. Not all law firms are equipped to operate remotely without missing a beat. On top of that, many law firms have had to fire essential support staff. Is your law firm paperless or capable of becoming paperless? Is the team that was serving you before the outbreak still in place? Call your attorney and ask them how they're set up to handle your case during the coronavirus pandemic.

The second thing you can do is check-in frequently with your attorney. The wheels of justice turn slowly even in the best of times, so you must make sure your attorney continues to be aggressive and your case doesn't fall through the cracks. One of the potential benefits of the pandemic is an increase in settlements in cases that would normally drag on. Check-in with your attorney from time to time and ask what they're doing at that moment to move your case forward and whether the pandemic has changed their strategy.

Lastly, consider switching law firms. If your law firm is not equipped to handle your case remotely or you don't feel like your case is being treated as a priority, this is a good time to explore other options. When you switch attorneys, your old attorney must turn over your case file to your new attorney. This means that all the work completed by your old attorney isn't lost and your new attorney doesn't have to start from scratch. When meeting with your new attorney, be sure to politely explain the problems you had with your old attorney and ask the new attorney how they'll make sure those problems won't be repeated.

Personal injury law is based on negligence.

Each person has a duty to others to avoid causing harm, whether there's an existing relationship or not. For example, a driver must operate a vehicle safely and cautiously to meet their duty to other road users including motorists, pedestrians, and bicyclists.

A shop owner has a duty to ensure there are no hazardous conditions that might cause a foreseeable injury to a customer.

An employer has a duty to provide a safe and hazard-free workplace for employees and clients.

The CDC reports that many people with the virus do not show symptoms. In addition, people can be contagious and spread the disease before they begin to show symptoms. Part of what makes the disease so dangerous is that it's highly contagious by people who don't know they're carrying the virus.

However, if someone has tested positive for COVID-19 or is presumptively diagnosed (believed to have the disease) and fails to adhere to the CDC requirements for isolation and quarantine, then they might be considered negligent if they spread the disease to others.

Quarantines are not just for patients who are diagnosed with the disease. The CDC recommends a 14-day quarantine for any person who has been in close contact with someone who has tested positive. If a person violates a mandate to quarantine that's issued by their local health department, they might be considered negligent if they spread the illness to others.

Along those same lines, if a person begins to experience symptoms consistent with COVID-19 (fever, cough, other flu-like symptoms) and they fail to consult a medical provider and continue to be out in public or in contact with other people when they know they have these symptoms, that could also be negligent.

But negligence, alone, doesn't give rise to a personal injury claim.

In order to file a claim, a person's negligence must have caused another person to be diagnosed with the illness. A person who spreads the illness isn't negligent unless they had symptoms or had reason to believe that they'd been in contact with someone else who did.

The illness would also need to cost you money (known as "damages"). Many people who are infected with the coronavirus have mild symptoms and don't require hospitalization or treatment. If someone's infection doesn't cost them money, they wouldn't have a claim for damages. This could be either costs related to medical treatment or lost wages for time out of work related to the illness.

Employers and businesses are responsible for ensuring that employees and customers are not exposed to a known threat, and for providing reasonable accommodations.

OSHA requires an employer to comply with industry-specific safety standards, along with general obligations for employers that include:

• Keeping a workplace free from hazards
• Recognizing hazards
• Preventing hazards that could cause death or serious physical injury
• Correcting or alleviating any hazard for which it's feasible to do so

OSHA doesn't offer specific guidance during a pandemic. However, it made this statement during the 2009 H1N1 outbreak:

"During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information."

Source: https://www.eeoc.gov/facts/pandemic_flu/

OSHA also requires that an employer may not take action against an employee who refuses to be exposed to a dangerous condition, based on the standard that a reasonable person would conclude that there is a danger of death or serious injury.

Negligence is unintentional wrongful conduct that causes harm.

In the context of an employer's response to a pandemic, there could be several ways to establish negligence:

• Medical malpractice. In this instance, a healthcare provider could be liable for breach of duty to a patient.
• Scope of practice. A healthcare provider could be negligent for making decisions or performing taste beyond their licensed permissions.
• Premises liability. Anyone who owns or manages property can be responsible for injuries to people that happen on the premises, whether it's employees, customers or visitors. If certain facilities are being used as care sites for ill patients, points of distribution for medicine or supplies or testing sites, those facilities can be responsible for hazardous conditions.
• Failure to prepare. Healthcare facilities have numerous information resources to provide guidance for preparing for a medical emergency. If a facility doesn't plan appropriately according to the guidelines, stay current on the most updated information or properly train staff, it could be open to a claim for failure to plan or prepare.
• Breach of privacy. Patient confidentiality is covered by the Health Insurance Portability and Accountability Act (HIPAA) and Family Educational Rights and Privacy Act (FERPA), and there are additional state privacy and confidentiality laws. These laws continue to apply in an emergency. Medical providers and health departments must follow protocols to provide accurate reporting to communities and school districts without violating patient confidentiality.
• Gross negligence. This is an action or failure to act that is so reckless that it disregards the possibility for an injury or harm to occur. An act of gross negligence would not be covered under a statute that provides immunity or liability to protections to emergency responders or other professionals.

Historically, under the "doctrine of sovereign immunity," private citizens weren't permitted to sue the federal government or the state governments for negligence. However, the federal government (through the "Federal Tort Claims Act") and state governments (through various "Tort Claims Acts") waived this immunity for most cases.

Assuming your claim isn't barred by the Federal Tort Claims Act or your state's Tort Claims Act, you can sue the government for negligence. To do so, you'll have to establish the elements of negligence just as you would if you were suing a private citizen or business:

• The defendant owed you a duty
• The defendant breached the duty
• The defendant's breach was the proximate cause of your injuries

As is the case with suing a private individual or business for infecting you with the coronavirus, the hardest element to prove when suing the government will be causation. You'll need to prove that the government's action (or inaction) was the proximate cause of your injury. This means you'll have to prove that you didn't contract the disease as a result of some other action (such as going to the store), which will be extremely difficult given how many people are infected with the coronavirus.

Despite the challenges, we're likely to see several negligence lawsuits filed against the federal and state governments, ranging from failure to provide adequate testing or safety equipment to failure to restrict travel promptly.

Keep in mind that whenever you sue the government there are strict guidelines you must follow (that don't exist when suing a private citizen), so you should talk to an experienced attorney as soon as you think you have a valid claim.

Many people who are diagnosed with the coronavirus have mild symptoms that don't require hospitalization and they recover on their own at home. If there are no medical expenses, your workers' compensation claim would be based on your lost wages from being out of work.

In some states, workers' compensation benefits begin after an employee has been out of work recovering for a certain period of time. If your workplace is closed because of the coronavirus, it might be difficult to determine when your benefits would end since you might not return to work as you normally would after an illness. Although this is still new to the legal system, it would likely be when you're considered fully recovered and out of the mandatory 14-day isolation period.

Workers' compensation claimants have a duty to mitigate their injuries (commonly referred to as "damages" in the legal world). This means that claimants must take all reasonable steps to keep their losses from becoming worse. When you file a workers' compensation claim, your insurer may attempt to deny your claim or reduce your benefits if it believes you failed to mitigate your damages.

One of the most common ways in which claimants fail to mitigate their damages is by missing medical appointments. When this happens, the insurer often argues that by missing appointments, the claimant extended their recovery period. In other words, the injured worker would have healed faster and suffered less had they kept their medical appointments and, therefore, the claimant shouldn't receive benefits for the increased recovery time.

For this reason, you generally want to avoid missing medical appointments. However, it's also important to recognize that many hospitals and doctor's offices are rescheduling non-essential surgeries, procedures, and appointments. If you need to miss a medical appointment because it has been rescheduled (or because you don't feel comfortable exposing yourself to potentially infected patients), tell your workers' compensation insurer or your attorney what's going on.

In all likelihood, you won't be penalized for missing an appointment during this time, but it's best to be cautious and keep all relevant parties informed.

If you are showing symptoms of flu-like illness or those associated with COVID-19, your employer is permitted to ask you to seek medical attention and get tested. The CDC has said that an employee who has symptoms of flu-like illnesses should leave the workplace immediately.

COVID-19 still has a lot of unanswered questions because it's so new. During the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) declared that asking a worker to go home wouldn't violate disability guidelines if the symptoms were similar to H1N1 or seasonal flu. It would likely be the same for coronavirus.

The Americans with Disabilities Act prohibits an employer from asking about an employee's medical status. The EEOC considers taking an employee's temperature to be a "medical exam" under this rule.

However, although the ADA prohibits an employer from requiring a medical exam or making a disability-related inquiry, it can generally be permitted under 2 conditions:

1. If the exam or inquiry is job-related and has a business necessity, or
2. The employer reasonably believes that the employee's health poses a "direct threat" to any other person's health or safety.

The EEOC also defers to CDC guidelines as the pandemic evolves and might allow taking an employee's temperature at work if it becomes recommended by the CDC.

The Federal Employees Compensation Act (FECA) is the federal law that provides benefits to federal employees who have sustained work-related injuries or diseases.

A federal employee who contracts COVID-19 can receive workers' compensation under FECA if they are able to:

• Provide a medical report from a qualified physician reflecting a positive test for COVID-19, and
• Establish that they contracted COVID-19 while performing a work duty.

If your loved one contracted the coronavirus in a nursing home or hospital and died as a result, you might be able to sue the nursing home or hospital under the theory of negligence.

To establish a negligence claim, you'll first have to prove that:

• The nursing home or hospital owed your loved one a duty,
• The nursing home or hospital breached the duty, and
• The breach was the proximate cause of your loved one's death.

All nursing homes and hospitals owe their patients a duty of care. As a result, the focus of your lawsuit will be on whether the nursing home or hospital breached this duty by failing to take reasonable steps to prevent the spread of the virus.

For example, if a nursing home resident showed symptoms of the novel coronavirus, and the nursing home staff didn't keep them away from the other residents, the nursing home probably breached their duty of care.

Once you establish that the nursing home or hospital breached their duty of care, you'll then need to establish that the breach caused your loved one's death. In other words, you'll need to prove that your loved one contracted the virus as a result of the nursing home or hospital's actions (or inaction) and not as a result of some other cause (such as a visit from a relative who had the coronavirus).

There is a long history in the United States of personal injury lawsuits based on infectious diseases. Most recently, a patient sued the University of Pittsburgh Medical Center for allowing a tuberculosis-infected nurse to continue working with patients.

If you contract the novel coronavirus from a rideshare driver, you have 2 potential legal courses of action.

First, you could sue the rideshare driver for negligence. The theory behind this claim would be that the rideshare driver owed you a duty of reasonable care, and the rideshare driver breached that duty by giving you a ride while they were infected with the coronavirus.

In such a lawsuit, you face 2 significant hurdles:

1. You need to prove that the rideshare driver knew or should have known they were infected with the coronavirus, and
2. You need to prove that you were infected by the driver and not some other person.

Second, if you live in a state that mandates paid sick leave and that also reclassifies contract workers as employees, you might be able to sue the rideshare company if the company failed to pay the mandated sick leave and the infected rideshare driver continued to work because of this failure. In California, for instance, 2 such lawsuits have already been filed.

A statute of limitations is a law that sets the maximum amount of time you have to file a lawsuit. If you fail to file your lawsuit within the statute of limitations, your case will be dismissed and you won't be able to recover any damages.

Though the statute of limitations for most personal injury cases ranges from 2-4 years (depending on the state where the lawsuit is filed), some personal injury claims, such as those brought against the government, must be filed within 90 days of the accident giving rise to the claim.

So what happens if you can't file your lawsuit on time because of the coronavirus?

The answer depends on the state where you plan to file your lawsuit. Some states, such as Texas have issued emergency orders that allow courts to extend statute of limitations. However, most states have not yet addressed the issue.

If you're concerned about filing your lawsuit before the deadline expires, use our free online directory to contact an attorney in your area right away.