Infected With COVID-19 After Surgery: Can I Sue the Hospital?

Coronavirus Risks at the Hospital

Getting infected with Covid-19 after surgery would likely only occur in an emergency situation at present. Elective surgery is predominantly canceled throughout the world.

However, many cancer patients are unable to afford a significant delay in surgery. The outcome of the course of the underlying disease will depend on the timeliness of their surgery. The potential value of the surgery must significantly outweigh the potential risk of contracting the virus. Cancer patients are immunosuppressed and at even greater risk.

We know that surgical patients are at high risk of contracting the virus. The literature confirms several post-operative cases of COVID-19 in China. The surgical outcomes for patients contracting the virus are dire in many cases.

If the surgery was not an emergency, the hospital may not have followed the duty of reasonable care of a surgeon or hospital during the COVID-19 pandemic. Even emergency surgeries carry risks to everyone, not only the patient.

Elective Surgeries

On resumption of elective surgeries, there will be new protocols for practicing surgery safely. If these protocols are not followed and the person contracts COVD-19, the hospital and surgeon would be actionable for not following the duty of care of a surgeon or hospital during a pandemic.

The informed consent protocol for emergency procedures is relaxed, given the life-threatening quality of the procedure. In an emergency, the person would have died but for the surgery, therefore the possibility of contracting an inadvertent infection may be considered an acceptable risk under the circumstances.

However, there are other non-life-threatening emergency procedures, such as orthopedic procedures. In these cases especially, the hospital must comply with all known safety precautions concerning the virus.

In an emergency, the hospital should practice the existing protocol in place during the pandemic. The risks exist for everyone, including all other patients and personnel in the hospital. Given the rapid transmission of the virus, every known precaution should be exercised wherever possible.

The practices and procedures in place at the time will depend on our knowledge of the disease and how to prevent its transmission. The protocols in place will vary on a daily basis.

All hospitals must follow strict procedures to avoid the transmission of the disease. Pre-surgical screening and testing for the virus with self-directed quarantine will help minimize risk. No patients or employees who tested positive should be permitted to enter the surgical floor or operating theatre areas. In addition, a thorough history should be taken to ensure the patient has not had contact with an infected person within 14 days.

The hospital should at least practice isolation of patients with the infection to avoid contamination throughout the facility.

Emergency cases should be maintained in a transition area before testing to avoid breaching the sterility of the surgical areas. If the emergency patient has tested positive, the surgery must take place in an isolation area.

In isolated surgical theatres, airflow is separate from other areas of the hospital. The hospital should properly disinfect the room and all instruments and equipment after each patient. There should be no admission of non-surgical staff from other areas of the hospital into the surgical theatres.