By Anne Marie Ellis

Law360 (April 7, 2020, 2:47 PM EDT )

Anne Marie Ellis

For most of us in the legal profession, COVID-19 has caused many disruptions and unanticipated consequences, and it has wreaked havoc on our court system. However, the full extent of the crisis has yet to be realized.

If you practice in the product liability and personal injury space, COVID-19 will not be going away anytime soon. I predict that we will see the ripple effects of the pandemic for years to come, particularly in personal injury cases.

The first fact pattern we will likely encounter is a personal injury plaintiff (let's call him Mr. Smith) who is injured by a tortfeasor. He resides in California, and is hit by a car while riding his bike, and suffers a serious brain injury.

First, let's assume that Smith seeks immediate medical treatment related to his personal injuries, at a hospital that is overrun with patients being treated for COVID-19. Smith is admitted to the hospital and unfortunately contracts the coronavirus during his stay. If Smith contracts the virus through the negligence of the hospital, nurses or doctors, this will not relieve the tortfeasor of liability.

Of course, the first question would be causation: How can we prove that Smith was not suffering from the coronavirus prior to admission? Assuming that this fact can be proven, the defendant will still be liable for any subsequent medical negligence that results from Smith's admission to the hospital as a result of the negligence of the tortfeasor.

This is because the Judicial Council of California Jury Instruction Number 3929, or CACI 3929, "Subsequent Medical Treatment," provides that:

[I]f a defendant is legally responsible for the plaintiff's harm, it is also responsible for any additional harm resulting from the acts of others in providing medical treatment or other aid that plaintiff reasonably required, even if those acts were negligently performed.

In other words, even if the hospital was negligent in its treatment of the plaintiff, if the torfeasor caused Smith to go to the hospital in the first place, the tortfeasor is responsible for any additional harm to Smith as a result of his receiving medical treatment related to the bike accident.

Now, let's assume that Smith was already infected with the coronavirus at the time of his accident. He is admitted to the hospital, and his coronavirus diagnosis complicates or even prevents his medical treatment for the brain injury. Again, the tortfeasor is not relieved of liability due to Smith's preexisting coronavirus condition.

This is because California follows the eggshell plaintiff doctrine, as reflected in CACI 3929, which provides that:

[Y]ou must decide the full amount of money that will reasonably and fairly compensate the plaintiff for all damages caused by the wrongful conduct of the defendant, even if the plaintiff was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury. 

In this circumstance, the torfeasor takes the plaintiff as he finds him, which is an unhealthy person who is more susceptible to serious injury or even death due to his compromised immune system.

However, CACI 3929 must be read in conjunction with CACI 3927, which states:

[P]laintiff is not entitled to damages for any physical or emotional condition that he had before defendant's conduct occurred. However, if plaintiff had a physical or emotional condition that was made worse by defendant's wrongful conduct, you must award damages that will reasonably and fairly compensate him for the effect on that condition.

Again, if Smith's underlying coronavirus symptoms were made worse by the fall (for example, he had constricted airways due to the virus and could not breathe after the fall), he can still be compensated. The tortfeasor will not be able to escape liability by simply claiming that Smith had a preexisting condition for which it was neither responsible nor liable.

While much of this might give the defense bar heartburn, there are still some viable causation defenses. Most importantly, CACI 430 sets forth "substantial factor causation," which is defined as, "a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm."

The tortfeasor's conduct would not be a substantial factor if the same harm would have occurred without that conduct. In this fact pattern, if Smith would have suffered the same harm without being hit by the car, the tortfeasor would not be liable. This is unlikely, as the tortfeasor's actions are more than a remote or trivial factor in causing Smith's head injury.

Finally, here is another potential scenario. Let's assume that the hospital is so overwhelmed with patients that they cannot take Smith, and are forced to turn him away, causing a delay in treatment. Can the tortfeasor argue that Smith failed to mitigate damages? Unlikely.

While CACI 3930 establishes that a plaintiff is not entitled to recover damages for harm that a defendant proves the plaintiff could have avoided with reasonable efforts or expenditures, it is safe to say that no reasonable person would be expected to seek out alternative medical care under these circumstances. Similarly, it is unlikely that the plaintiff would be faulted for the hospital's inability to care for them.

Relatedly, if Smith were unable to keep medical appointments and follow up treatment due to cancellations caused by the coronavirus, it is unlikely that these failures would equate to a failure to mitigate damages that could be held against him. Smith must simply show that he used reasonable diligence.

When it comes time to analyze medical billing, it will be important to distinguish between treatment related to coronavirus and treatment related to the head injury. To the extent a defendant attempts to argue that it is not liable for medical treatment solely caused by the symptoms related to coronavirus, it will be necessary to parse out the care and treatment of each diagnosis to effectively make the argument.

As a reminder, a personal injury plaintiff in California can only recover the amounts actually paid by an insurance company, amounts paid out of pocket, or those amounts that are on a lien pursuant to Howell v. Hamilton Meats and Provisions Inc.[1]

Finally, retained consultants and experts will need to be adaptable and knowledgeable about COVID-19, and will need to be skilled at reviewing medical records and insuring that they are able to understand the nuances involved in the symptoms, diagnosis, spread and treatment of the disease, and its interplay with other medical conditions.

Of course, there are myriad ways in which COVID-19 will creep into litigation. Each case will turn on its own unique set of facts, and must be evaluated on its own merits. Now is the time to start thinking about how to prosecute and defend cases in the age of the coronavirus — and how to marshal evidence and retain the appropriate experts in order to make the most persuasive arguments.

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Anne Marie Ellis is senior counsel at Buchalter PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Howell v. Hamilton Meats and Provisions Inc. (2011), 52 Cal.4th 541.

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