May 22 • 6 min read

New legal review paper from Samuel Hodge details the ways COVID-19 could disrupt both the medical and legal fields for the foreseeable future

PHILADELPHIA, May 22, 2020 — Can you imagine being called for jury duty soon? And, if you were called, would you even feel comfortable or safe going to sit?

According to Samuel Hodge, Jr., for a great number of Americans, the answer to that question is probably no. He doesn’t expect that to change anytime in the near future.

“The court system is at a standstill right now. You have all these lawsuits that have nothing to do with coronavirus, but the legal system has come to a total stop,” says Hodge, a professor of Legal Studies at Temple University’s Fox School of Business. “Now, let’s assume you are called for jury duty. Are you going to want to go and sit in a room with many other people waiting to be picked to serve on a jury? I see our justice system upended by COVID-19 for quite some time.”

Hodge’s new legal review article, “COVID-19: The Ethical and Legal Implications of Medical Rationing” was recently accepted for publication in the Gonzaga Law Review. Co-authored by Jack Hubbard, a neurologist based in Minneapolis, Minn., the piece takes a close look at what could be the long-term ramifications of the COVID-19 pandemic from both a medical and legal perspective.

It references the personal protective equipment (PPE) shortage, a potential shutdown of our legal system and how some states have moved forward with publishing guidelines for the allocation of ventilators and other supplies. 

We caught up with Hodge to gain his insight into the key takeaways of his new article.

Q: What was the impetus for your new legal review article? 

A: I believe there is still a lot of misinformation surrounding coronavirus, and that’s something I wanted to help better clarify. This is actually our seventh coronavirus, and I’m not sure if everyone is familiar with that fact. Back in 2003, we had Severe Acute Respiratory Syndrome (SARS). Then, in 2012, we had Middle East Respiratory Syndrome (MERS). The term coronavirus merely means a respiratory illness that can be transmitted from individual to individual. It is not limited to COVID-19. The reason this one is so fatal is because the virus keeps mutating, and our immune system cannot build up a response to it. There’s no known treatment at the present time, and there’s a dispute as to when we’ll have a vaccination. Some people are saying it could be in January but normally, a vaccination takes years to develop. So right now, the main treatment is to avoid contamination. The only other thing health care providers can do is supportive care. The problem is that we have a shortage of equipment needed for supportive care.

Q: In your piece, you specifically discuss the shortage of ventilators. We have seen governors and officials call for more ventilators. What happens when a hospital has more patients than it has ventilators?

A: So let’s say you have two people in the hospital suffering from COVID-19 but only one ventilator. One of these individuals is a 75-year-old Nobel Prize winner. Another is a 30-year-old homeless man. Do you take the ventilator away from that 75-year-old and give it to the homeless person because he’s younger and has a better chance to survive? Doctors will have to make life-and-death decisions about who will receive a ventilator, and that means choosing who lives or dies. 

Q: Those are not exactly easy decisions. How does one do that?

A: A number of states have developed guidelines for how to allocate ventilators and resources in short supply. The most sophisticated rules exist in New York. They have a very detailed plan on how it’s done, and they are taking the decisions out of the hands of the treating physician. Some state plans, such as Alabama and Washington, exclude people with certain disabilities or conditions, from gaining access to ventilators during a public health crisis. For instance, Alabama’s Emergency Operations Plan excludes people from ventilator use who have advanced dementia, cancer that has metastasized, AIDS and ‘severe mental retardation.’ In Pennsylvania, we don’t have formal rules, but the state government has drafted interim guidelines, and they are being circulated to ER doctors now. There are also going to be many lawsuits filed over the coronavirus ranging from personal injuries claims against entities such as cruise ships, day care centers, hospitals and nursing homes alleging that they didn’t take adequate steps to protect their patrons to lawsuits against employers for worker’s compensation and disability benefits.

Q: That’s the other key aspect of your new article: lawsuits. Who knows when any of these will be settled? What type of effect will COVID-19 have on the legal system?

A: The legal system is in a state of flux. For instance, the Supreme Court has moved to having oral arguments online. I also foresee citizens not wanting to be a juror, and I would not be surprised to see jury verdicts going down in value. The practice of law has been altered, cases are not proceeding to trial and we are going to see an influx of lawsuits related to COVID-19. The courts will have to implement many new rules and regulations to deal with the backlog of cases due to the inactivity of the legal system for the past several months and there will be much litigation involving a variety of creative causes of action over the virus as well as breach of contracts and employment law issues. I believe COVID-19 will have a great effect on the legal system that will keep the courts busy for years to come.


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