Liability in the Age of COVID-19

Kay Van Wey of Van Wey Law. (Courtesy photo)

COVID-19 is creating unprecedented burdens upon the way we work and live, says Dallas attorney Kay Van Wey. In fact, she compares what’s going on now to 2014 when an Ebola outbreak hit the city.

Texas Lawyer had the chance to speak with Van Wey recently about who is liable and how to help businesses and citizens understand their risks with COVID-19.

Can you compare and contrast the 2014 Ebola outbreak to what’s happening today with the COVID-19 outbreak? Also, can you talk about the responses to the legal fallout from Ebola and what you expect will happen with the COVID-19 outbreak?

Kay Van Wey: Flashback to 2014 when you could hardly go anywhere in Dallas without fear of contracting Ebola. No hospital was prepared for Ebola. Flash forward to 2020. No hospital was prepared for the COVID-19 outbreak. Lessons were undoubtedly learned from Ebola because hospitals became aware that they needed to be prepared for highly infectious disease outbreaks. I certainly believe some hospitals and hospital systems prepared as best they could, but I do not believe anyone was adequately prepared for the magnitude of the current pandemic we face. As well, it seems unsafe to me that the response varies from hospital to hospital, city to city, county to county, state to state. Much of the response has been left to the private sector, meaning for-profit hospitals. Granted, the CDC is providing guidance, but that guidance changes and hospitals are left having to pivot in response to changing guidelines.

China and many of its health institutions have been named in a class action lawsuit over the failure to properly contain the COVID-19 outbreak, which has now engulfed the world. The lawsuit was filed in the U.S. District Court for the Southern District of Florida on March 13. What do you make of this?

It is an interesting case and I hope they are successful. There is no doubt the pandemic has cost the U.S. trillions of dollars and has killed many people, destroyed businesses, etc. If you want to talk about health care provider liability for COVID-19, I think we should talk about the Coming Attractions Bridal and Formal [v. Texas Health Resources] case. This case was disposed of based upon the plaintiff’s failure to serve Chapter 74 reports, but I think the takeaway here is that the court left open the possibility of a case against a health care provider based on failing to diagnose and treat a communicable disease. The Texas Supreme Court stated: “To prevail at trial, Coming Attractions would have to establish through expert medical testimony that the hospital’s training, treatment, and infection control policies departed from the appropriate health-care-provider standards of care, and that these departures proximately caused contamination of the shop, posing a health danger to its patrons.” The problem here is that the “standard of care” is uncertain and changing. The science is new and evolving and changing. Furthermore, what a reasonable and prudent health care provider would do under the same or similar circumstances may be altered by virtue of lack of resources, staff and equipment. Another thing to consider is whether Texas’ heightened standard of proof requirement would be applied since this has been declared a national emergency … even to cases that occur outside the ER. Speaking for myself, we are not considering suing health care providers who are stepping up to care for patients suffering from COVID-19. Most of these people are doing the very best they can under the circumstances. Having said that, I know from over 30 years experience that in times like these, heroes emerge, as do villains, and we are already seeing this.

A Phoenix-area man died and his wife is in critical condition after ingesting chloroquine phosphate, which is an additive commonly used to clean fish tanks, in the hopes of avoiding COVID-19 days after a March 19 news conference in which President Donald Trump said chloroquine is being tested as a possible COVID-19 therapy. Do you expect a lawsuit to result from this tragedy? Who’s to blame here and why?

Someone recently asked me if the president of the United States can be sued for dispensing bad medical advice. If a physician had prescribed this treatment, I feel confident they would be sued for medical malpractice. It is not malpractice per se to prescribe drugs for off-label uses, but any new drug or new treatment for COVID-19 must go through some testing. I do understand that there are measures underway to shorten the approval process for new drugs, but this has its potential dangers. In non-pandemic times, you would not want to take a drug that had not gone through rigorous clinical trials. And, just FYI, the medications currently under investigation for COVID-19 are chloroquine and hydroxychloroquine. The gentleman and his wife took chloroquine phosphate.

What liability does the media have in driving otherwise normal people to rush to the stores and strip the shelves of toilet paper, bottled water, hand sanitizer and nonperishable food items?

No more so than when we get an eighth of an inch of snow in Texas and we have similar rushes for “essential supplies.”

Can you talk about how the COVID-19 outbreak has affected your practice and how you overcame any challenges that emerged? Also, what advice can you to other attorneys that will help them conduct their practice in what is indefinitely the “new norm”?

I am busier than ever. I have joked with my staff that I am going to need a vacation after the restrictions are lifted. It is amazing how much work lawyers can do with a computer and a cellphone. We haven’t skipped a beat. We are conducting Zoom meetings all day, every day. Fortunately, we were “paperless” before this crisis hit. We had also planned for situations, such as snow days, so that all of our team members can log in and work from home. I think we’ll be stronger and more efficient as a result of having to become resourceful. I am looking at ways to increase efficiency and do things better. For example, it finally pushed me to migrate to QuickBooks Online. We are conducting depositions via video teleconference and doing virtual mediations. We are also looking at ways to “try” cases without convening juries, such as dong summary jury trials to retired Judges in lieu of jury trials if it saves us and our clients from having to reset a current trial setting and it makes sense for the facts of a particular case. I have long been preaching that there are way more efficient ways to practice. For years, I have questioned why five lawyers have to board a plane and fly halfway across the country to take a three-hour deposition that could be taken virtually.

Kay Van Wey is a founder and partner at Van Wey Law. She is a board-certified personal injury trial lawyer with over 30 years of experience. She’s been named Texas Super Lawyer by her peers for 15 consecutive years and was voted a D Magazine Best Personal Injury Lawyer in 2016 and 2018.

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