Wrongful Death Defense

How Do Companies and Health Care Providers Defend Against Wrongful Death Claims?

From health care providers to cruise lines, entities in a broad range of industries are bracing for wrongful death litigation arising out of the COVID-19 crisis. Here are some important considerations for defending against novel coronavirus wrongful death claims by the experienced wrongful death defense attorneys at Oberheiden P.C.

As the death toll from the novel coronavirus (COVID-19) outbreak in the United States continues to rise, health care providers and businesses in a broad range of other industries are bracing for the inevitable wrongful death lawsuits. Many cases have been filed already, and the number of COVID-19 wrongful death claims is expected to increase significantly in the coming weeks and months.

When facing wrongful death litigation related to COVID-19, businesses have a variety of different issues to consider, and they must make decisions carefully and strategically based on the advice of the best wrongful death defense legal counsel. Companies that defend themselves effectively will be able to avoid unwarranted liability, while those that make mistakes and take unnecessary risks may find their ongoing viability in jeopardy.

3 Stages of Wrongful Death Claim Defense

For many companies and health care providers, the COVID-19 crisis will be their first exposure to wrongful death litigation. For others, defending against plaintiffs’ allegations will be nothing new, but the novel coronavirus pandemic will present unique issues that have the potential to drastically impact the outcome of plaintiffs’ wrongful death claims.

In broad terms, the process of defending against a wrongful death claim related to COVID-19 can be broken down into three phases: (i) claim assessment, (ii) defense strategy development, and (iii) defense implementation.

1. Claim Assessment

When assessing wrongful death claims related to COVID-19, one of the most important factors will be determining whether the plaintiff is able to conclusively establish that the victim was exposed to the virus at the business’s or health care provider’s facility. Despite the social distancing guidelines that are in place and the “stay at home” orders that have been implemented in most states around the country, there are still many ways that individuals can become exposed to COVID-19. From exercising outdoors to grocery shopping, many individuals are still coming into contact with multiple other individuals on a daily basis; and, when this is the case, it is going to be extremely difficult for plaintiffs to make a convincing case for blaming a particular business or health care provider.

In fact, the greater risk for health care providers may be claims related to failure to properly diagnose or treat patients who contracted COVID-19 from other sources. Triage has become a major issue in many locales, and diagnostic and treatment errors are fertile ground for medical malpractice claims. When assessing the viability of wrongful death lawsuits, health care providers and other businesses must critically examine the facts cited in the complaint in order to determine what specific allegations they need to defend against.

2. Defense Strategy Development

After assessing the plaintiff’s claim, the next phase of the process involves developing a cohesive defense strategy. There are numerous potential defenses to wrongful death allegations – particularly those related to COVID-19 – but it may or may not make sense to assert all possible defenses in any particular case. Oftentimes, asserting multiple defenses can confuse the issues, and it can make it appear as though no one defense is strong enough to stand on its own. As a result, oftentimes (but not always), the more prudent approach will be to select a subset of the available defenses and build a cohesive defense strategy centered around one or a few key flaws in the plaintiff’s case.

3. Defense Implementation

Once a defense strategy has been determined, then the next phase is implementation. This phase can take anywhere from several weeks to a year or longer, and it can involve all aspects of litigation from discovery through trial. If it is in the company’s best interests to settle, then the implementation process will focus on building the leverage needed to steer the case toward a favorable settlement. However, if the company is not liable, then implementation may require a different approach focused on convincing the plaintiff’s attorneys that they do not stand a chance of winning at trial.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Lynette S. Byrd
Lynette S. Byrd

Former Assistant U.S. Attorney

Partner

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Gamal Abdel-Hafiz
Gamal Abdel-Hafiz

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

The Importance of Discovery in Wrongful Death Defense Cases

We mentioned discovery, and discovery is an absolutely essential component of the defense process in wrongful death claims. While discovery is intended to be a fact-finding endeavor, the discovery process can also be used strategically to apply pressure, build leverage for subsequent negotiations, and formulate the basis for motions to dismiss and motions for summary judgment to be filed in court.

With respect to novel coronavirus-related claims in particular, effective discovery is likely to be essential for health care providers and other businesses. Where else did the victim go where he or she could have been exposed to COVID-19? How is the plaintiff certain that the victim was exposed at your company’s facility? What evidence do they have to prove it? Did the victim do everything he or she could have in order to avoid infection, symptoms, and complications? These are all questions to which you are entitled to know the answer, and the way to find these answers is through effective discovery by the best wrongful death defense lawyer.

At the same time, discovery can also present traps for unwary defendants. Unnecessarily disclosing information, failing to preserve the attorney-client privilege, and sending representatives into depositions unprepared are all mistakes that can protract wrongful death litigation and steel plaintiffs’ (and their attorneys’) resolve to keep fighting. With this in mind, all aspects of discovery need to be managed carefully, and health care providers and other businesses must work closely with their litigation defense attorneys to avoid creating unnecessary issues.

Liability and Malpractice Insurance Considerations

In most cases, wrongful death claims are likely to be covered by companies’ and health care providers’ liability insurance policies. This includes medical malpractice insurance for physicians and other providers. But, even if insurance coverage is available, companies will need to defend against claims effectively in order to mitigate any financial costs and prevent the flood gates from opening to additional claims.

When facing wrongful death litigation involving fatalities related (or allegedly related) to COVID-19, companies and health care providers will likely want to work with their insurance companies with regard to formulating defense strategies and making any decisions about settlement. At the same time, however, companies and health care providers will need to be careful to preserve their ability to pursue claims against their insurers if necessary.

Settlement Considerations

In any type of wrongful death case, there are several considerations involved in engaging in settlement negotiations as a defendant. However, in cases in which there is the potential for multiple claims (as in the case of the COVID-19 crisis), there are many additional complex considerations involved.

When the potential for additional claims exist (or when your business is facing multiple claims already), settlement negotiations with individual plaintiffs can have broader implications. Even if the negotiations are kept confidential (which they should be), agreeing to settle one case could set the stage for future plaintiffs to expect to be able to negotiate settlements as well. Additionally, from a financial perspective, companies and health care providers must be careful to avoid putting themselves into untenable positions. Financial resources will only stretch so far, and liability insurance policies may limit the available coverage for claims arising out of events related to the novel coronavirus outbreak.

Preparing for Litigation

Whether settling is not in your company’s best interest or the plaintiff is unwilling to entertain reasonable settlement negotiations, at some point it may become necessary to prepare for trial. This, too, presents unique considerations during the COVID-19 crisis. State and federal courts in many jurisdictions have suspended trials during the pandemic; and, once the courts fully reopen, they are going to be faced with enormous backlogs.

Could this impact settlement negotiations? Yes, absolutely. Could it delay the resolution of claims in which no liability is warranted? This is a very likely outcome as well. With these types of practicalities in mind, companies and health care providers will need to carefully weigh their options with the assistance of their legal counsel.

Customer/Patient vs. Employee Claims

Finally, when discussing COVID-19 wrongful death claims, there is an important distinction to be made between claims filed by customers or patients and claims filed by employees. Employees are subject to various protections (both generally and in specific response to the COVID-19 crisis), and these protections will impact both the substance and the procedural aspects of wrongful death litigation. But, in any case, the key to mitigating risk is to execute a proactive response, and this starts with engaging a team of highly-experienced wrongful death defense lawyers.

Contact the Wrongful Death Defense Attorneys at Oberheiden P.C.

At Oberheiden P.C., we are actively representing companies and health care providers in compliance and litigation matters during the novel coronavirus pandemic. If your business is facing a wrongful death lawsuit, or if you are interested in doing everything you can to mitigate your liability risk in the event of wrongful death litigation, we encourage you to call 888-680-1745 or contact us online for a complimentary initial consultation.

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