The legal world can be daunting for most folks who aren't lawyers and legal specialists in the best of times — let alone when unprecedented and rare circumstances arise that create an entirely unique assortment of questions and concerns. The novel coronavirus disease 2019 (COVID-19) pandemic is one such circumstance.
As officials continue to control the outbreak and people everywhere adjust to the "new normal," we at Enjuris are focused, as always, on providing informative and actionable answers to your most pressing legal questions.
In such difficult and trying times, Enjuris is proud to partner with some of the top attorneys in the nation to give clear and concise answers to common legal questions about the coronavirus and how it might impact your injury or accident claim. We must all do what we can to help each other during this ongoing crisis, and we at Enjuris will continue to do our part.
COVID-19 is likely to give rise to a number of personal injury cases. For example, cruise ship passengers who contracted or were exposed to the novel coronavirus might sue the cruise line for its failure to enforce passenger contact restrictions or establish ship cleaning protocols.
But what if your personal injury lawsuit has nothing to do with the coronavirus?
The coronavirus might still impact your personal injury claim in several important ways.
First, legal proceedings that normally take place face-to-face might now be done remotely. Some states have already begun to issue orders requiring parties to participate in depositions, hearings, and other legal proceedings via telephone or video conference. In some cases, proceedings (particularly jury trials) may be postponed altogether.
Second, insurance companies are likely to become overwhelmed. As a result, your personal injury case might proceed more slowly than normal. Fortunately, most insurance adjusters already work remotely and therefore you or your attorney should be able to communicate with the insurance company as normal.
Third, like insurance companies, medical professionals are likely to become overwhelmed. Some health systems are already canceling non-essential surgeries. What's more, appointments might become harder to schedule. If you visit Enjuris.com regularly, then you know how important it is to receive medical care following an accident. If you're having trouble getting seen by a doctor, be sure to document your attempts so the defendant can't later claim that you didn't seek medical attention.
Finally, if you haven't filed your personal injury lawsuit yet, you should know that the statute of limitations might be extended. However, this will likely vary from state to state. Don't assume that your state will increase the time you have to file a lawsuit. You should meet with an attorney as soon as possible.
Each state — and in some cases, municipality — is handling the coronavirus differently. Some areas have a higher concentration of cases, and some state leaders and mayors of large cities are taking a stricter approach than others. Courts might be closed, court staff might be working remotely, and other processes could be temporarily shut down or working at minimum capacity.
If you have a case pending, you should contact your lawyer to find out whether your filings or court dates are continuing on schedule. And, be patient. Your lawyer is likely fielding many calls just like yours and might be working with minimal staff in the office and limited access to resources.
If you're handling a matter in small claims court, call the local judiciary to find out whether cases are continuing to be heard and filed.
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.
Generally speaking, a person can sue for the negligent transmission of a contagious or infectious disease. Depending on the circumstances, the person may sue the individual from whom they contracted the disease or the entity that failed to prevent the spread of the disease.
As is the case with any negligence lawsuit, the plaintiff will need to prove that:
In 2006, the California Supreme Court found a husband liable for infecting his wife with HIV. The court held that liability for the negligent transmission of a contagious or infectious disease extends to situations where the defendant, "under the totality of the circumstances, had reason to know of the infection."
Given the massive media exposure, it probably won't be difficult to prove that a person had reason to know they were infected with the novel coronavirus (assuming the person experienced at least some symptoms). What's more, given the federal and state recommendation to self-quarantine if you experience symptoms, it probably won't be difficult to prove that a person breached their duty to exercise reasonable care by failing to self-quarantine.
The biggest challenge for a plaintiff in a negligent transmission case will be proving causation. To put it simply, how can the plaintiff prove that the defendant infected them and not some other person who they might've been in contact with?
Even if a plaintiff is able to prove duty, breach and causation, they will still need to prove that they suffered damages. In the case of a coronavirus infection, damages might include medical expenses, lost wages, and even pain and suffering.
Though the above discussion focuses on suing an infected person for the negligent transmission of the coronavirus, the same points apply to suing an entity for failing to prevent the spread of the disease.
Let's look at an example:
A cruise line discovers that one of its crew members is exhibiting symptoms of the coronavirus. Nevertheless, the cruise line allows the employee to continue serving passengers.
The cruise line owes a duty to its passengers to, at minimum, exercise reasonable care to protect the passengers from harm. The cruise line almost certainly breached this duty when it allowed the infected crew member to continue serving food and having contact with passengers. The challenge for the plaintiff in this hypothetical will be proving causation.
To put it another way: How will the plaintiff prove that they contracted the disease from the crew member and not some other passenger?
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.
When you file a personal injury claim, you'll have to prove that you were injured and support your request for damages with evidence. Medical records are one of the most common forms of evidence. If you skip medical appointments, you won't have as much evidence to support your claim.
Additionally, plaintiffs have a duty to mitigate their damages. If you skip your medical appointments, the defendant may argue that you failed to mitigate your damages by dragging out your recovery. If the argument is successful, the court may reduce your damages accordingly.
What's more, missing appointments may give insurance adjusters, jurors, and judges the impression that you're not really as injured as you claim to be.
With that being said, it's important to recognize that many hospitals and doctor's offices are currently rescheduling non-essential surgeries, procedures, and appointments in light of the coronavirus pandemic. If you need to miss a medical appointment because it has been rescheduled (or because you feel that it's dangerous to expose yourself to potentially infected patients), tell your lawyer immediately so they can communicate with the necessary parties and help limit the damage to your claim.
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:
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."
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:
Lawsuits against the government during public health emergencies are relatively common and generally take the form of civil rights challenges in response to government restrictions, such as quarantining individuals or creating containment zones. When the government imposes such restrictions, it must weigh public health concerns against individual liberties. If the government goes too far, it can be sued.
For example, in 2014, during the Ebola epidemic, a nurse who had returned from treating Ebola patients in Africa was quarantined despite not showing any symptoms of the disease. The nurse sued the government and, as part of the settlement, the government agreed to implement new quarantine rules to help ensure that quarantines only happen when medically necessary.
However, lawsuits like the one described above will likely be more difficult to prove with respect to the coronavirus. This is because, unlike Ebola, the symptoms of coronavirus are less clear and therefore the restrictions are necessarily broader.
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:
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.
The purpose of the workers' compensation system is to provide medical treatment and benefits to people who become injured or ill at work.
In general, personal injury claims are based on negligence — the injured person must prove that the defendant's negligence caused their injury. Workers' compensation is the exception because it's a no-fault system.
An employer's workers' compensation insurance covers a work-related illness or injury whether or not it was caused by negligence. That means you might be able to recover workers' compensation benefits if you are infected by coronavirus at work, even if the employer was following all recommended protocols for containing the spread of the disease.
A claim related to exposure to and infection with coronavirus will likely be denied if it's "incidental" to the workplace.
If a health care or medically-based employee contracts a disease such as coronavirus at work, the biggest challenge to a workers' compensation claim will be proving that they were infected with the virus in the workplace. Since the virus is so widespread and contagious, and because many people can be infected without showing symptoms, it could be impossible for most workers to prove how they were exposed.
If someone you've been in contact with as part of your work-related duties has been diagnosed with the coronavirus, and if you are diagnosed with the illness, then you might be able to recover workers' compensation benefits for your medical expenses and lost wages while you're home from work if you meet these criteria:
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.
Each employer is responsible for taking precautions to limit the spread of coronavirus to employees.
Actions that employers must take now in order to limit the spread of coronavirus include (but aren't limited to):
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.
The requirements and guidelines for the coronavirus are changing every day and vary based on your location.
At this time, employers have discretion as to whether they can require an employee to report to work, unless the employee is in a quarantine or self-isolation condition. If your method of transportation shuts down or you have children at home who require care, you should talk with your employer about options for working from home, using paid time off, or other available resources.
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:
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.
If you contracted COVID-19 at work, you might be able to receive workers' compensation benefits. In order to find out, you'll first have to file a workers' compensation claim.
The specific steps that you must follow depend on the state in which you're filing your claim. You can read more about the general steps in our Workers' Compensation Guide, and you can find your specific state guide on our Accident and Personal Injury Law Guides by State page.
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:
Medical malpractice occurs when a patient is harmed because a healthcare professional deviates from the accepted standard of care. One of the most common acts that results in a medical malpractice claim is the misdiagnosis of an illness. A misdiagnosis is when a doctor or other healthcare professional examines a patient but reaches the wrong conclusion about the plaintiff's condition.
For example, if a man comes into the doctor's office complaining of chest pain and the doctor diagnoses the ailment as indigestion when, in fact, the pain is an early symptom of a heart attack, then this is a case of misdiagnosis.
In order to establish a medical malpractice claim based on misdiagnosis, you must prove the following 2 elements:
In other words, just because a healthcare professional misdiagnoses your illness doesn't mean they've committed malpractice. The reality is that some illnesses are tricky to diagnose. If the mistake was one that a reasonable healthcare professional would make, there's no malpractice. As a result, the focus of most medical malpractice cases is on what a reasonable healthcare professional would have done in a specific set of circumstances.
One of the reasons the novel coronavirus is so difficult to contain is that it's difficult to diagnose. The symptoms of COVID-19, which include fever, dry cough, and shortness of breath, are similar to the symptoms of other respiratory diseases that commonly circulate in the United States — namely, the common cold and flu. What's more, the COVID-19 pandemic is a rapidly evolving situation, so what is known about the disease is constantly changing.
As a result, it will be difficult to establish a medical negligence claim for the misdiagnosis of the coronavirus. With that being said, every case has a different set of facts and you should talk to an experienced medical malpractice attorney about your specific situation.
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:
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.
While there's no legal precedent yet (i.e. no rulings have been made) against a company like a cruise line or retail store for negligently exposing customers to the coronavirus, it's likely only a matter of time. If fact, civil lawsuits have already been filed against Princess Cruise Lines by passengers who claim the company knew that a passenger they let onboard was in bad condition and had symptoms that pointed to coronavirus, yet the company allowed thousands more to board and put their health at risk.
If and when such claims arise, it will likely be debated whether the company took reasonable measures to protect customers, visitors or passengers from the disease. The court will need to determine whether the actions taken were reasonable under the circumstances and based on health organizations' recommendations at the time.
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:
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.
As the novel coronavirus spreads, many lawyers have been forced to shut down their offices and work from home. Fortunately, modern technology allows many lawyers to continue handling cases remotely. For example:
As lawyers transition to remote work during this time, it's reasonable to expect that things might take a little longer than normal. What's more, certain legal proceedings (such as jury trials) must take place in-person and therefore may be postponed.
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.
Have more questions about how coronavirus will impact your injury case? Want to find out whether you can sue a business or individual for exposure? Ask our attorney advisory board:
Colorado personal injury and workers' comp attorney
Georgia workers' compensation attorney
Florida personal injury attorney
Georgia personal injury attorney
Florida personal injury attorney
Georgia personal injury and Social Security disability attorney
Arizona workers' compensation attorney
Montana personal injury and workers' compensation attorney
Whether you were planning to start law school soon or are currently enrolled, you probably have a lot of questions right now about your future. If your classes have been suspended, we invite you to continue your education by visiting our For Students page for helpful tips, tools and tricks for ensuring success in your studies and beyond.
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