As lawyers with significant experience with litigation involving the last pandemic in 2009 (H1N1), we would like to share our perspectives on the coronavirus which has now entered the Firm’s geographical practice areas. It has often been said that the coronavirus poses a low risk to healthy individuals, but this is little consolation to the aged or immunocompromised who are at risk for severe outcomes if exposed to the virus. Many coronavirus patients will require advanced medical care to survive. It is the task of the government, the healthcare industry, businesses, and society at large to assure that the number of new infections requiring advanced care do not exceed the system’s capacity to provide that care. If the coronavirus outbreak expands rapidly, with many new infections surfacing within a short period of time, the number of patients requiring intensive care with ventilator assistance could overwhelm the ability to provide that care. This is the nightmare scenario which must be averted. One obvious solution is to rapidly expand ICU/ventilator capacity, but the race to expand capability to meet a sharp rise in cases may well be lost. That is why there must also be an institution of measures, which although called preventative, at least have the potential to slow down the communication of the virus. If the new cases come in gradually and are spread out over a relatively long period of time, rather than in a sudden or sharp spike, there is a much less chance that our capacity to provide the advanced medical care to those who need it will be outpaced by the number of new cases. An ICU can handle 100 cases or be overwhelmed by them, depending on timing. Ten new cases per week coming over ten weeks is manageable. One hundred cases coming in during one week is not. And this is why the protective measures which might seem like “overreactions” are happening. Crowding poses a risk of mass exposure and a rapid escalation of new cases. Cancelling parades, the entire remainder of sports seasons, and essentially any gathering of people seems drastic. But keeping people away from each other, whether by governmental order, decisions of businesses and educators, or from the voluntary acts of the citizenry, has the potential to “flatten the curve,” as illustrated below, and make sure that  medical resources will be available to those who need them.

One day not too far from now, the coronavirus scare will subside. Things will go back to normal. Unavoidably, there will be tragic losses from the coronavirus. But when we look back, will we able to say that deaths were unavoidable, and occurred despite complete medical treatment? Complete medical treatment which was available because the healthy sacrificed for the less healthy by taking radical preventative measures which at least slowed down the new contractions of infection?  Or will we have to admit that in this country of immense resources, people died because we ran out of ICU beds, doctors, nurses, and ventilators. The robustness of the actions taken now to make it more difficult for the coronavirus to spread rapidly will determine whether we will meet the challenge of the coronavirus, or unforgivably fail the vulnerable.

diagram of coronavirus and healthcare system capacity