Will Medical Workers' Families Have Wrongful Death Claims for Lack of PPE?

The shortage of personal protective equipment (PPE) during the coronavirus pandemic could lead to legal claims.

The COVID-19 pandemic has raised a number of legal questions, including the potential for liability based on inadequate protection for health care workers.

Medical facilities are required to provide health care professionals (HCPs) and staff with personal protective equipment (PPE) that, when used effectively, would significantly limit workers’ exposure to the coronavirus. Medical care is the most "essential" of services these days, and medical workers have little choice but to continue working, PPE or no PPE.

Insisting that doctors and nurses work without protective equipment isn’t a far cry from sending military servicemembers into battle without combat gear. When essential protective equipment is not provided, and health care workers die as a consequence, what legal recourse do their families have? In this article we'll discuss how wrongful death lawsuits work, and the unique challenges that the family members of HCPs might face when trying to hold an employer liable for a loved one's death.

How Wrongful Death Cases Work

In wrongful death lawsuits, the survivors of a deceased person seek compensation for two categories of losses: the decedent’s harm suffered prior to his or her death, and the survivors’ losses resulting from the death. (Learn more about who can sue for wrongful death).

The plaintiffs in a wrongful death lawsuit must first prove that the defendant’s carelessness, negligence, or other wrongful conduct caused the decedent’s death. Note that if the family of a deceased employee is looking to sue their loved one's employer, then intentional, reckless, or grossly negligent conduct usually must be shown, otherwise a civil lawsuit is probably barred under workers' compensation laws (more on this later).

Learn more about how fault is established in a wrongful death case.

Each state has its own wrongful death laws, but in general, "damages" (or the types of losses that are compensable) in wrongful death cases typically include:

  • funeral and burial expenses
  • medical expenses
  • pain and suffering
  • mental anguish
  • lost wages
  • lost future earnings
  • loss of services the decedent would have provided
  • loss of companionship, and
  • loss of consortium.

Get more details on damages in a wrongful death case.

OSHA Guidelines for the Coronavirus Response

OSHA has yet to issue specific regulations or laws relating to COVID-19. Under OSHA’s so-called General Duty Clause, employers are required to furnish each worker with "employment and a place of employment, which are free from recognized hazards that are causing or likely to cause death or serious physical harm." Learn more about OSHA and workplace health and safety.

In March 2020, OSHA issued its Guidance on Preparing Workplaces for COVID-19, which does not change employers’ legal obligations to their employees, but provides explanations for how to navigate the crisis. In those guidelines, OSHA specifically delineates that:

  • employers are obligated to provide workers with PPE needed to keep them safe while performing their jobs, and
  • employees working within 6 feet of patients known to be, or suspected of being, infected with COVID-19 need to use respirators.

Coronavirus-Related Wrongful Death Claims

The early landscape of coronavirus-related wrongful death cases hasn't included claims by the family of HCPs.

In early April 2020, after a Walmart employee contracted COVID-19 and later succumbed to the disease, his family filed the first wrongful death claim arising from the virus. His estate claims in the lawsuit that Walmart committed willful and wanton misconduct by not following official recommendations for curbing the spread of the virus.

Several days later, the daughter of a deceased nursing home resident filed a wrongful death lawsuit against Life Care Center, the location of the first COVID-19 outbreak in the U.S. In her complaint, she claims the nursing home "lacked a clear plan of action leading to a systemic failure," despite advance notice of the danger posed by the virus. She further claims that Life Care Center staff was inadequately trained, improperly equipped, and lacked effective protocols to deal with the crisis.

What About Health Care Workers?

The available data is not yet thorough enough to be reliable, but the Centers for Disease Control and Prevention has suggested that so far, health care workers represent more than 10 percent of COVID-19 infections.

Survivors of HCPs who have died from on-the-job exposure to the coronavirus could potentially have legal rights against the HCP's employer. But as mentioned above, the families of these deceased health care workers likely can't file a wrongful death lawsuit against their loved one's employer unless they can show that the employer's conduct (in failing to procure or provide adequate PPE) was intentional, reckless, or somehow amounted to gross negligence. That's because workers' compensation provides an exclusive remedy for workplace-related deaths, but in most states exceptions are carved out (and a civil lawsuit might be permitted) when the employer's action or inaction rises above the level of ordinary carelessness or negligence.

The challenge is establishing intentional or reckless (or grossly negligent) conduct. If a hospital did everything in its power to obtain necessary PPE supplies, but was simply unable to do so, a wrongful death lawsuit will likely be barred, and the death will be covered by workers compensation. But if the family can show that on numerous occasions the health care facility had been fined or warned by a government agency regarding failure to provide PPE (or failure to have adequate supples on hand), that type of misconduct could rise above ordinary negligence, and justify the filing of a wrongful death lawsuit in civil court. There may also be other legal avenues available to the family members of health care professionals. For legal advice tailored to your situation, your best first step is to discuss your situation with a personal injury attorney.

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