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‘Take-Home COVID-19’ Claims: Preparing for a Second Wave of Coronavirus Litigation

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The Spanish Influenza epidemic came in three waves, with the first hitting in March 1918, the second in the fall and the third in the winter of 1919. The U.S. Centers for Disease Control and Prevention considers the second wave to have been the most deadly. In the United States, well over half of the epidemic’s death toll of 675,000 occurred during the second wave. It is no surprise then that public health experts were already warning of the possibility of a second wave of the coronavirus pandemic when the world was just beginning to acknowledge that the first wave was upon it in February.

Personal injury mass litigation also comes in waves. Consider asbestos: In the first wave, individuals who worked directly with asbestos filed workers compensation claims. Workers exposed to asbestos in products filed products liability suits during the second wave. A third wave included “take-home asbestos” claims in which workers’ children and spouses sued for illnesses caused by exposure to asbestos fibers taken home from work. A fourth wave is now underway with the alleged asbestos contamination of consumer talc products.

The first wave of personal injury coronavirus litigation emerged in early March when a married couple sued Princess Cruise Lines for gross negligence for placing “…profits over the safety of its passengers, crew, and the general public in continuing to operate business as usual.” Many similar individual and class action lawsuits have followed. According to an analysis by the Miami Herald, some 3,600 cruise line passengers have contracted COVID-19 and more than 100 have died. 

The situation in nursing homes is far worse. Nursing home residents account for an estimated 40% of U.S. coronavirus deaths thus far. Predictably, wrongful death suits filed by the family members of nursing home residents are surging, even as some states move to shield nursing home operators from liability. Personal injury lawsuits have also been filed against hospitals, meatpackers, restaurants, grocery stores and warehousing operations.

However, as the first wave of the coronavirus pandemic subsides, personal injury litigation may subside along with it. But what if the pandemic has a second wave? Although there is a great deal of uncertainty, public health experts now believe that there is no inherent seasonality to COVID-19 itself, but they remain deeply concerned that a combination of complacency and greater indoor activity could lead to a second wave of infections in the coming months.

What would a second wave of coronavirus personal injury litigation look like? One possibility that modelers at Praedicat are considering is a wave of “take-home COVID-19” litigation arising from occupational infection, coupled with high rates of intra-family transmission. Praedicat modelers estimate that 7-9% of COVID-19 deaths in the first wave have been family members of workers in essential industries who acquired coronavirus at work. With widespread testing and improved contact tracing, take-home transmission could be relatively easy to demonstrate during a second wave. The first take-home COVID-19 lawsuits were filed in August against an electrical supply company and a meatpacking facility, and the precursors to these complaints are present in earlier lawsuits filed against Amazon and McDonald’s.

Many public health officials believe that it is entirely within our power to keep a second wave of the virus from forming while we wait for a vaccine to be developed and deployed. A unified and steadfast public health campaign is critical if we are to avoid a second wave, individual companies working to limit transmission among their workers and customers is as well. First and foremost, this means closely adhering to federal, state, and local guidelines and industry best practices regarding disinfection, screening and testing, social distancing, and the use of masks and other personal protective equipment. Employers might also work to raise awareness of take-home exposure and the risk to vulnerable older family members or those with pre-existing conditions like diabetes that have been shown to elevate the risk of life-threatening complications associated with COVID-19.  Depending on the circumstances, maintaining social distance at home may be just as critical as maintaining social distance at work.

While a second wave of the pandemic may be unlikely, some level of infection, illness, and litigation is sure to be with us until there is a vaccine. The best protection against liability is making the safety of workers and customers paramount. But risk managers need to prepare for the worst and should also be reviewing the availability of coverage for employment related coronavirus claims, including take-home exposure. The employers liability exclusion under a general liability policy, for example, might exclude claims made by the family members of workers.

Insulin Pumps Recalled After Hacking Vulnerability Revealed

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After the U.S. Food and Drug Administration (FDA) expressed concern this week that some of its internet-connected insulin pumps are vulnerable to hacking and could not be patched, medical device manufacturer Medtronic Plc has announced that they would offer an exchange for the 4,000 patients who are reportedly using the vulnerable devices. If patients are using vulnerable out-of-warranty models, Medtronic is offering a newer replacement at a discounted price, and in-warranty models will be replaced free of charge.

The Medtronic insulin pumps in question work by regularly providing insulin to the patient with the help of a continuous glucose monitor (CGM), which uses Bluetooth to connect to a computer via a CareLink USB device. This system allows patients to remotely send the device commands and share data with their health care providers. These devices are part of an industry-wide push to connect medical devices to the internet (as part of the wider internet of things, or IoT) to allow more efficient and cost-effective communication between patients and providers.

While the exact nature of the insulin pump vulnerability is unclear at this time—neither the FDA nor Medtronic has disclosed any technical details—the danger from someone exploiting the vulnerability is very serious and could be potentially fatal. According to the FDA, “an unauthorized person (someone other than a patient, patient caregiver, or health care provider) could potentially connect wirelessly to a nearby MiniMed insulin pump with cybersecurity vulnerabilities. This person could change the pump’s settings to either over-deliver insulin to a patient, leading to low blood sugar (hypoglycemia), or stop insulin delivery, leading to high blood sugar and diabetic ketoacidosis.” In a letter to patients using one of the vulnerable pumps, Medtronic confirmed the potential danger, saying that “An unauthorized person with special technical skills and equipment could potentially connect wirelessly to a nearby insulin pump to change settings and control insulin delivery.”

Fortunately, there have not been any reported cases of anyone exploiting the vulnerability, but it is not the case of such an issue affecting these devices. In 2011, a security researcher was able to hijack nearby Medtronic insulin pumps, giving him the ability to deliver potentially fatal doses of insulin to patients within 300 feet. After the vulnerability was revealed, Medtronic released a statement saying that it was working to improve their devices’ security.

This March, it was also revealed that Medtronic’s connected pacemakers, clinic programmers and home monitors were also vulnerable to hacking. In that case, Dutch security researchers discovered the security flaws, which the company reportedly initially denied before the FDA began an investigation. The agency later issued a warning about the pacemakers, and Medtronic released a patch for the software. As with the insulin pumps, there were no reported cases of anyone taking advantage of the security flaw before the fix was implemented.

Speaking to CBS News after the March incident, the FDA’s Dr. Suzanne Schwartz said, “Any device can be hacked and that’s often not understood,” adding that companies are not prepared for this reality and that “we still have a ways to go.” This week, the FDA released a set of recommendations regarding the latest insulin pump vulnerability, including a suggestion to patients: “Talk to your health care provider about a prescription to switch to a model with more cybersecurity protection.”

Such cases highlight the continuing potential risks of internet-connected medical devices. As discussed in the recent Risk Management article “Diagnosis: Risk—The Product Liability Challenges of Diagnostic Health Tech,” cyber vulnerability is only one of the many challenges for manufacturers and users of connected medical devices. These devices—especially ones that provide medical diagnostic data—have scores of built-in product liabilities that could land their manufacturers (as well as any number of other companies in the devices’ chain of distribution) in legal trouble if something goes awry.

WHO Classifies Burnout as Occupational Phenomenon

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The World Health Organization (WHO) has officially recognized workplace burnout as an occupational phenomenon in the latest version of its “International Classification of Diseases” (ICD). This official designation indicates how serious workplace burnout and stress are as an impediment to a healthy, productive work environment, and how important it is for employers to take concrete steps to address it.

Since 1948, the WHO has published the ICD, which “defines the universe of diseases, disorders, injuries and other related health conditions, listed in a comprehensive, hierarchical fashion.” The last published version of the ICD defines “burnout” as a “state of vital exhaustion,” but the forthcoming edition has updated that definition, clarifying that it is a condition that occurs specifically in the workplace.

The new definition includes: “Burnout is a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed. … Burnout refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life.

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” The three factors the WHO identifies for classifying burnout are:

  1. Feelings of energy depletion or exhaustion,
  2. Increased mental distance from one’s job, or feelings of negativism or cynicism to one’s job, and
  3. Reduced professional efficacy

According to a 2017 Gallup poll, 23% of U.S. employees “reported feeling burned out at work very often or always, while an additional 44% reported feeling burned out sometimes.” When workers suffer from burnout, it can have serious effects on business performance. A 2017 survey conducted by Kronos Incorporated and Future Workplace also noted that “95% of human resource leaders admit employee burnout is sabotaging workforce retention,” and “nearly half of HR leaders (46%) say employee burnout is responsible for up to half (20% to 50%, specifically) of their annual workforce turnover.” This means higher recruiting costs, additional time for other employees and managers involved in the recruitment and training processes, as well as potential business interruptions and lost institutional knowledge.

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Gallup also noted that employees experiencing burnout “are 63% more likely to take a sick day,” and alarmingly, “are 23% more likely to visit the emergency room.

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” Indeed, in 2015, the Harvard Business Review says that workplace stress caused additional physical and psychological healthcare spending between $125 and $190 billion annually in the United States. Given the rising costs of U.S. healthcare and increasing recognition and treatment related to burnout, it is likely that these numbers have only increased.

Gallup reports that the top five factors most highly correlated with burnout are:

  • Unfair treatment at work
  • Unmanageable workload
  • Lack of role clarity
  • Lack of communication and support from manager, and
  • Unreasonable time pressure

The American Psychological Association’s Center for Organizational Excellence has outlined the importance of communication to maintaining a psychologically healthy work environment, both bottom-up and top-down. The APA’s recommendations include “providing regular, on-going opportunities to provide feedback to management,” and “leading by example, by encouraging key organizational leaders to regularly participate in psychologically healthy workplace activities in ways that are visible to employees.” The organization also emphasizes work-life balance, noting that instituting policies like flexible work arrangements and assistance with childcare can provide “benefits in terms of increased productivity and reduction in absenteeism, presenteeism and employee turnover.”

When companies take workplace stress seriously, and implement processes to address burnout and create healthy work environments, they see happier workers, higher retention and greater productivity, as well as lower costs. The WHO officially acknowledging burnout as a serious workplace concern should be a wake-up call for employers.

Infographic: 16 Blockchain Disruptions

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Underpinning the heart of digital currencies, blockchain has graduated from being merely a buzzword to revolutionizing how companies conduct business. Services and products that are powered by blockchain pose financial and operational risks that can challenge traditional models. With new cryptocurrencies popping up regularly and law firms creating practice groups around it, blockchain is bound to impact your industry.

If you need a quick primer on the topic ahead of the many blockchain education sessions at the RIMS 2019 annual conference, the folks at Bitfortune have created the voluminous infographic below to help you understand how the technology will improve 16 different industries, from music to government.

Explore how blockchain goes beyond Bitcoin and real-world applications that affect you and your organization.

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Discover ways that blockchain increases transparency and could potentially benefit your organization’s overall resilience.

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