Emergency room.

Hospitals That Ditch Masks Risk Exposure

By Nina Kohn and Irina D. Manta

This month, New York became the latest to join the growing list of states that have ended their requirements for routine masking in hospitals and other healthcare settings.

In response, at least one of the state’s largest hospital systems is throwing off the mask despite the continued high level of virus transmission in New York City and most of the rest of the state. NYU’s Langone hospital system decided that — outside of the Emergency Room — patients would generally only be required to mask “if they have fever and cough” (query what percentage of individuals with recent COVID-19 infections did not have this specific combo of symptoms — spoiler: it’s probably high). Similarly, the hospital announced that masking by direct care staff was optional in most situations, with masks required mainly during certain procedures, in particular patient rooms, or — more cryptically — when “there is concern for exposure to infectious aerosols.”

Ending routine masking in hospital settings is a dangerous move. It puts patients and staff at risk for infection, and its potential long-term effects. It also exposes hospitals to the risk of liability.

Hospitals have a common law duty to act reasonably. If they unreasonably expose patients to risk, and the patients are harmed as a result, hospitals may be liable for damages. The result: patients who can show that it is probable that they were infected with COVID-19 in a hospital, and that they would not have been if the hospital had taken reasonable measures to protect them, may be able to successfully sue hospitals for damages.

The big question is what does it mean to act “reasonably” in a world in which COVID-19 abounds and remains a leading cause of death, including for children. Over the past century, courts have developed a variety of approaches to figuring out the bounds of reasonableness. In determining whether a precaution is “reasonable,” modern courts commonly consider the relative costs and benefits of taking that precaution. Where an individual causes harm because they fail to take a cost-justified precaution, they may be found negligent and required to pay for the damages they have caused.

Requiring masks in direct patient care settings is a prime example of a cost-justified precaution. Masking is a simple, effective, and low-cost measure that hospitals can take to substantially reduce the spread of COVID-19. And the benefits are significant in hospital settings. Hospitals concentrate people who, as reflected in the conditions that bring them to the hospital, are both more prone to infection and more likely to face serious consequences if infected. Moreover, both healthcare providers and patients are known vectors of transmission in healthcare institutions.

Hospitals may contend that the ordinary approach to determining reasonableness should not apply to claims based on their masking policies. Specifically, they may point out that healthcare providers are generally only liable for medical malpractice if they violate a customary standard of care (that is, if they fail to act as similarly situated providers would in the situation). This argument has two major weaknesses. First, hospitals provide medical care, but not all decisions they make are medical decisions. All sorts of businesses face the decision as to whether to require customers to mask; the decision facing hospitals is not uniquely medical in nature. Thus, a claim that a hospital’s failure to require masking was unreasonable may be best construed as alleging ordinary negligence, not medical malpractice. Second, hospitals that drop universal masking in direct care settings are not necessarily following the customary standard of care or acting as other competent providers would under the circumstances. Indeed, even as New York dropped its mask mandate, the state’s Department of Health advised hospitals and other healthcare settings to continue to require masks at this time, and major institutions such as New York City’s public hospital system and Memorial Sloan Kettering announced they would keep masking in place. Thus, even if the underlying claim is categorized as involving medical malpractice, hospitals may be found to have breached their duty of care.

In the typical situation in which an individual is exposed to COVID-19, the infected person may have difficulty showing who infected them, and thus will not have a successful lawsuit. But hospitals seeking to avoid liability for hospital-acquired infections cannot bank on plaintiffs being unable to show causation. For example, if an individual is hospitalized for an extended period, and develops COVID-19 during that period, the individual may have little difficulty showing that it is probable that the infection was acquired during hospitalization and would not have occurred if the hospital had taken reasonable precautions.

Hospitals may try to avoid responsibility by claiming they are immune from suit, but increasingly this defense is likely to fail. While early in the pandemic a number of states granted hospitals and other providers sweeping immunity from liability, many of these provisions have been rolled back. (Notably, in 2021, New York repealed provisions granting healthcare providers immunity amid the pandemic.) The federal Public Readiness and Emergency Preparedness Act (“PREP”) Act, which preempts certain claims related to precautions against COVID-19 infection, may also fail to provide a safe harbor. As the U.S. Department of Health and Human Services has explained, the PREP Act does not provide immunity to healthcare providers who fail to use precautions against viral spread. (True, providers may be immune for decisions on how to allocate scarce countermeasures — even though that results in nonuse in some cases — but masks are hardly a scarce resource in 2023.)

Likewise, hospitals cannot necessarily avoid liability by arguing that patients consent to unmasked care. Many patients cannot voluntarily consent to this: they require urgent care, are too young, or have a cognitive impairment. Moreover, because of the essential nature of medical care, courts have generally rejected the argument that patients can consent to medical malpractice.

Science, law, and the principle of “do not harm” all concur about the path to keeping patients safe from disease and hospitals safe from liability: at a minimum, continue requiring masks amid the ongoing COVID-19 pandemic. Otherwise, hospitals are proceeding at their own risk — and that of their patients.

Nina Kohn is the David M. Levy Professor of Law, Syracuse University College of Law; Distinguished Scholar in Elder Law, Solomon Center for Health Law & Policy.  @ninakohn

Irina D. Manta is a Professor of Law and the Founding Director of the Center for Intellectual Property Law (CIPL), Maurice A. Deane School of Law at Hofstra University.  @irina_manta

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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