Are we still exposed to claims from the pandemic period?

Many states enacted emergency immunity for health care providers during the declared emergency. Those statutes varied enormously in scope, most applied only to care rendered during a defined window, most excluded gross negligence, recklessness and willful misconduct, and a number were subsequently narrowed, allowed to lapse or repealed.

Plaintiff counsel responded predictably by pleading around the immunity: the allegation is not that care was imperfect under emergency conditions but that infection control failures preceded the emergency, that staffing was inadequate for reasons unrelated to it, or that the conduct was reckless rather than negligent.

The practical position is that immunity is a defense to be litigated rather than a bar that ends the case, which means defense cost is incurred regardless of the eventual outcome.

Policies in force during the pandemic period generally did not carry a broad communicable disease exclusion. Policies written since largely do. Because professional liability in this class is claims-made, the policy that responds to a claim made today is today policy, with today exclusion, even though the care occurred years ago.

That is the structural trap. The exposure is retrospective and the exclusion is prospective, and the claims-made trigger means the exclusion wins unless something is done about it.

Read the communicable disease exclusion in the current policy and see whether it is a pure infectious disease exclusion or whether it is written broadly enough to catch a neglect claim that happens to involve an infection. The broad version can reach an ordinary pressure injury with sepsis, which has nothing to do with a pandemic.

Ask for a carve-back for claims alleging negligent care that is not solely based on transmission of a communicable disease. That is the language that preserves your ordinary neglect coverage while leaving the transmission exposure excluded.

And check whether any circumstance from that period was ever noticed to a carrier under a policy in force at the time. A properly noticed circumstance attaches to the old policy, which did not carry the exclusion.

Infection control policies as they existed at each point in time, with version dates. Staffing records for the period. Communications with the state and local health departments. Personal protective equipment procurement records. Testing and vaccination logs where applicable.

The defense in these cases turns on demonstrating what was known and what was available on the specific date, and that record is deteriorating as staff turn over. It is worth preserving deliberately rather than assuming the electronic record captured it.