Hospitals should prepare now for virus suits

Cartoonist Scott Adams, creator of Dilbert, claimed to be channeling the national consensus when he announced that “losing a few hundred thousand people (or fewer if we are clever) is an acceptable price for reopening the economy.”

Personally, I found it gratifying to have my long-held suspicion — that the character of Dogbert speaks for the cartoonist — confirmed.

Still, color me skeptical that having coffins pile up on the sidewalk, as in Guayaquil, Ecuador, or fill up churches, as in Bergamo, Italy, is the most business-friendly way out of the lockdown. Reopening the economy isn’t necessarily the same as reviving it, after all, and mass death is pretty much the opposite of revival.

Meanwhile, Sweden seized the opportunity offered by the virus to enact the plot of “Logan’s Run,” with a sellby age of 70 rather than 30. Everybody older than that, and everybody with a chronic disease, has been ordered into house arrest for the duration, ridding society of their unwelcome presence.

A similar devotion to negative eugenics seems to be behind Texas Lt. Gov. Dan Patrick’s insistence that “there are more important things than living.” If the virus selected for Republican donors, it’s possible his philosophical ponderings might have led him in a less nihilistic direction. Or perhaps he and Adams hope that human sacrifice on a sufficiently grand scale will appease the gods responsible for the plague.

Traces of magical thinking are all over the public discourse, as with the repeated invocation of “peak” to describe the day before drastic lockdowns began having their effect, as if a steady downward slope is guaranteed.

In recent weeks many news articles have described sick people being turned away from hospitals, and many others have described people dying at home, but very few point out that these are two parts of a single story, and it’s a story about health care rationing.

Any time a health care facility turns away a patient who subsequently dies or suffers gravely, the potential for a malpractice suit looms large. I hope the nation’s hospitals are preparing for pandemicrelated lawsuits better than they prepared for the pandemic itself.

We all should be deeply grateful for the heroics of our front-line medical workers.

But it’s grotesque that heroism is required.

Could hospital administrators have foreseen the possibility of a pandemic, along the lines of the pandemics predicted in detail by everyone from Bill Gates to the Obama White House to any number of novelists and screenwriters? If so, could they have stockpiled sufficient PPE?

Every time I hear of another administrator threatening job action against medical workers who speak out about the risk to their lives, I marvel again at their eagerness to spend so much of their future lives in the company of litigators.

Any easing of the lockdown will have to proceed in steps, bringing another set of problems. On Twitter, journalist Jill Filipovic asked: “States ‘opening up’ before schools and childcare facilities open up just means women are going to lose their jobs, right?” The answer lies with employers. Those who don’t accommodate parents could be inviting a novel kind of employment discrimination lawsuit.

In ordinary times, it would be difficult for any employee to prove that he or she contracted an infectious disease at work, just as in ordinary times no one would fault an employer for failing to provide protective equipment or enforce social distancing. But in these days, if a worker is scrupulous about maintaining social distance off the job, proving that the likeliest source of infection was the workplace might be easy.

Because the law runs on precedent, and this situation is unprecedented, I’m not sure whether a worker’s coronavirus claim against his or her employer would be shuttled into the workers’ compensation system, where damages are capped, or into the ordinary civil courts, a potentially chilling prospect for employers. No business owner wants to be in the position of waiting for a jury to return with a calculation of damages.

The White House has floated a trial balloon about a “liability shield” for businesses. Details don’t even reach the level of vague, as of the time of writing, but it’s difficult to conceive of any federal law that could constitutionally pre-empt the entire enormous landscape of state law.

A more realistic approach might be that taken by the National Vaccine Injury Compensation Program, which offers a streamlined path to recovery. Or the federal government could provide a financial backstop to insurers who agree to a liberalized set of claims processing standards. Something along those lines strikes me as having a greater chance of withstanding legal scrutiny than a blanket grant of immunity.