A practice concentration within my business, H2 Healthcare, LLC, belongs to my wife who is also, the firm’s Senior Partner and co-founder and co-owner. The practice area is compliance and a strong focus within, is litigation support/expert witness/forensic nursing. My wife is frankly, one of the foremost clinical compliance (nursing) experts in the nation, supporting insurance companies and defense counsel on matters of wrongful death and alleged injury due to non-compliant clinical care delivery. Though I am biased, her work product attests to the fact that she’s pretty awesome.
A new focal area within her work is slowly rising and that has to do with the specter of COVID and COVID related litigation. We have yet to see the full manifestation of how COVID will end-up in harm or death litigation but suffice to say, it will. The early signs are suggesting COVID and its disruption, etc., will be tied causally to falls, injuries, other infections, perhaps death. In some cases, COVID may be tied to negligence such that a provider caused someone to become infected and die, either due to negligent infection control or some other form of source control (e.g., insufficient availability of PPE, etc.).
The problem with COVID litigation is that it is simply darn difficult if not impossible, to prove how it may have been sourced as an infection. Its spread was rapid and not easily tracked, especially when case numbers were at peak levels. Similarly, defense mechanisms against controlling spread were principally ineffective. Vaccines originally touted as effective at controlling the spread proved ultimately, to not be sterilizing at all, not even minimally so.
So, as the Plaintiff’s Bar begins to dabble in COVID litigation, this post for providers will (should) prove, particularly beneficial. The core of the post is an article written by a very good friend of mine and colleague, Randy DeLopst. Mr. DeLopst was an insurance consultant and expert in risk management. He recently passed away and his loss, is a rift in the insurance industry.
Randy and I went back as colleagues and friends for over three decades. He was brilliant and his expertise in insurance, particularly in coverage analysis, risk analysis, and understanding policy language and form, second to none. His work was impeccable and his advice, rock solid. He also had an incredible memory and a wry wit – the kind that caused you to smile about thirty seconds after he said something, just to break the ice or gain that chuckle.
In 2020 he wrote an article on insurance coverage, liability insurance coverage, and COVID for businesses. The premise was re-opening a business after COVID shutdown and then, what would a liability policy cover with respect to harm caused by COVID, such as infection. In typical Randy fashion, he surgically dissects common policy forms and coverage terms and then, ties the same and litigation risks, to legal cases and state laws across the country. This article is a MUST READ, especially given the growth of COVID litigation for senior living, post-acute, and all other providers. The article is available for download, here: Article-DeLopst-Liability-Coverage-for-COVID19