Celebrate health care workers by not suing them

In New York City, each evening at 7 p.m., the sound of people banging on pots and pans can be heard from apartment buildings within an earshot of hospitals all over the city. The cacophonous clanging is a salute to the beleaguered health care workers who are changing shifts on the asphalt down below. The ritual is meant to convey appreciation and thousands of idiosyncratic messages of hope.

And that’s great. The gesture does, no doubt, have a positive impact on the trepidatious psyches of those fighting the virus on the frontlines. However, the truth is, it isn’t that difficult.  Standing at a windowsill in sweatpants or a bathrobe for a few minutes — and then going back to a Netflix binge or Zoom call — is much different than confronting mortal danger, or even death.

So, the gesture falls a bit short if we allow it to suggest that “we’re all in this together” as the regular loop of public service announcements remind us day after day. From the perspective of our health care workers, the catchphrase does not resonate with an accurate sense of proportion.

But there will be an opportunity to show more profound appreciation, another chance to thank physicians and health care workers, in a more redeeming and morally equitable manner.

When malpractice attorneys start to run advertisements on television that you or your family may be entitled to COVID related a claim — that will be your chance. Don’t do it. If you hear that someone you know received a settlement from a hospital, don’t contribute any momentum to this pernicious wave. Demonstrate respect and gratitude. Decide not to sue.

And please don’t be so naïve to think it is not going to happen. Even now, with support for health care workers at an all-time high, the media continues to run ads sponsored by malpractice firms during their perpetual coverage of the pandemic. They run stories about the heroism of health care workers and profit from disseminating our medical expertise. Then, they break to commercials that seek to attack us. It’s shameless.

The hypocrisy has become so commonplace that we barely even notice it anymore. We’ve subconsciously memorized the phone number to call (don’t wait call eight), but tuned out our moral disgust.  We aren’t offended or outraged. Even our most respected journalists are complicit; they are part of the machine that permits these attacks to run.

And there will be temptation to sue. The damage that has been inflicted by the virus is incalculable. There are millions of people in New York alone that are grieving and facing economic uncertainty. Doctors and hospitals are an easy target.

The CARES (Corona Virus Aid, Relief and Economic Security) Act provides federal immunity for health care workers that are treating COVID patients. It does not, however, prevent malpractice attorneys from filing a claim.

Governor Cuomo has issued a moratorium on litigation against doctors and hospitals related to COVID “except in cases of gross negligence.” That’s positive. But what is “gross negligence”? The lawyers will test its meaning in open court.

And not all states have issued this “umbrella of immunity.” Governor Murphy of New Jersey, for example, was late in issuing “total” protection. His first executive order did not provide blanket immunity; instead he proposed a cap on the upper limit for a potential lawsuit. In effect, he was saying we expect litigation, and we will tolerate it, to a certain extent. He has since broadened the scope.

The point is, lawyers will challenge these federal and gubernatorial decrees. They will test the shoddy, moral fabric of our legal system. If they succeed — and win one case, in just one state — then what? Then malpractice firms will ramp up their advertising campaigns. People will think, “Everybody else is getting bailed-out, and so should I. If I file a claim, it won’t hurt the doctor or the hospital. The insurance company will pay.”

But your lawsuit won’t be harmless. It will inflict outrage, pain, shock, and depression. On whom? It will hurt the courageous men and women that cared for your loved ones. Do you really want to repay them by dragging them into court? Must they defend the decisions they made in the midst of a such chaotic situation, while trying to treat a novel virus for which there is no standard of care.

So perhaps it is our civic responsibility not to sue, even if our legal system permits it. If you want to show appreciation — to make some real noise in support of physicians — write a letter to CNN or MSNBC asking them to stop running medical malpractice advertisements.  Change the channel. Draw attention to the moral decay that allows the malpractice industry to flourish.  Or just maybe, when the pandemic is behind us, think long and hard before picking up the phone and calling a lawyer to sue — for whatever the reason.  Doctors would appreciate that gesture far more than the applause they receive when you honor them by banging on pots and pans.

Eric Dessner is an ophthalmologist.

Image credit: Shutterstock.com

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