COVID-19 Injury Lawyers

Denied Treatment for COVID-19 Due To Disabilities

Posted April 2, 2020

As the number of Americans being tested for COVID-19 increases, the need for resources is also rising. The problem with this is that the exponential growth of those being diagnosed with coronavirus is surpassing our ability as a nation to create the needed supplies like ventilators and respirators. 

Because of this, some Americans worry that they and their loved ones may not receive adequate treatment if diagnosed with the novel coronavirus. And, after various states have begun drafting plans to decide who will receive treatment if it must come down to choice, those with disabilities seem to unanimously be at the bottom of the barrel.

Such disabilities most at risk for denial of treatment include Down syndrome, cerebral palsy, autism, and Alzheimer’s.

Alabama’s plan for determining who receives lifesaving treatment, explains “persons with severe mental retardation, advanced dementia or severe traumatic brain injury may be poor candidates for ventilator support.” Another part says that “persons with severe or profound mental retardation, moderate to severe dementia, or catastrophic neurological complications such as persistent vegetative state are unlikely candidates for ventilator support.”

While Alabama’s plan is more forthcoming in intention, some states have kept it vague. Arizona’s emergency preparedness allows medical providers to “allocate resources to patients whose need is greater or whose prognosis is more likely to result in a positive outcome with limited resources.”

But this is not without a fight. Advocacy groups have banned together to protect the rights of those who have disabilities to ensure that their lives are just as valued as those who previously had no other health concerns.

The federal government has also stepped up to say that this treatment is wrong. In a bulletin by the U.S. Department of Health and Human Services’ Office for Civil Rights reiterated that the American’s With Disabilities Act prohibits discrimination in federally-funded health programs. The bulletin further explains, “As such, persons with disabilities should not be denied medical care based on stereotypes, assessments of the quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities,” adding, “Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”

While this is a step in the right direction, some still worry that it will not be enough to protect their loved one’s rights.

Currently, there are no reported cases of medical malpractice for denial of treatment because of intellectual disability. However, as the weeks progress, it is possible these cases may arise.

It’s important to know that being denied treatment can result in a medical malpractice case. 

There are very limited times when a medical provider can deny treatment to a patient. These include: 

  • The patient exhibits “drug-seeking behavior.”
  • The patient is not actually ill, even if they say they are.
  • The patient is being destructive or dangerous while waiting to be seen.

Also, under The Federal Emergency Medical Treatment and Active Labor Act (EMTALA), even private hospitals must treat individuals with emergency medical conditions, regardless if they can pay or not. 

Under the EMTALA, an emergency medical condition is one that may be sudden, includes severe pain, psychiatric disturbance, or symptoms of overdose, where the lack of care may result in:

  • Placing the health of the individual in jeopardy
  • Serious impairment of a bodily function or body part
  • Not enough time to transfer the patient to another facility or where the transfer itself can place the individual at risk

However, once a patient has been stabilized, they can be released or transferred to another hospital.

Every life is valuable. If you believe you or a loved one was denied treatment for COVID-19, contact us today. We have medical malpractice attorneys all over the nation waiting to take your case.