Excerpted From: Cecilia Plaza, In It for the Long Haul: the American Legal System's Failure to Protect Patients with Persistent Covid-19 Symptoms from Gender Discrimination in Healthcare, 18 Journal of Health & Biomedical Law 33 (2022) (293 Footnotes) (Full Document)


CeciliaPlazaThe COVID-19 pandemic is wreaking physical and economic harm on the United States as public health officials struggle to get the spread of the virus under control. But rising infection rates are not officials' only concern; for a substantial number of COVID-19 patients, predominantly women, the virus is triggering persistent symptoms referred to as “long COVID.” These patients, known as “long haulers,” represent approximately 10% of COVID patients and continue to suffer debilitating symptoms long after recovering from acute COVID-19. As the number of infections nationwide increases, so too will the number of long haulers.

Long COVED is a post-viral syndrome, or a chronic condition triggered by a viral infection, which, if left untreated, can escalate into a full-blown chronic illness. While long COVED can affect anyone who contracts COVID-19, the burdens of long COVID will likely fall disproportionately on women, as has the burden of chronic illness in general. This is due in large part to gender discrimination in clinical practice. Such discrimination increases medical costs for these patients by delaying or preventing diagnosis and treatment, often leading to a worsening of the patient's condition before appropriate treatment is received, if ever. For patients whose chronic illness is debilitating enough to cause legal disability, gender discrimination from healthcare providers can prevent access to the medical records and testing needed to apply for government benefits or workplace accommodations. Without the medical documentation to support a claim for legal disability protections, patients with chronic illness encounter more difficulties finding employment and navigating their workplaces, increasing their financial instability.

The American legal system presents avenues for addressing and discouraging gender discrimination in healthcare and for supporting people of all genders with long-term disabilities in occupational endeavors so as to support economic independence. But in practice, the available legal avenues to address gender discrimination in medicine fall short. Both the federal Patient Protection and Affordable Care Act (“ACA”) and state medical malpractice law provide wronged patients with an avenue for recovery against practitioners who provide substandard treatment due to the patient's sex or gender. However, in the context of chronic illnesses, sex discrimination claims under the ACA are unlikely to succeed, as are medical malpractice claims based on gender discrimination. Further, unchecked gender discrimination in medical practice continues to affect patients with chronic conditions long after the particular instance(s) of discrimination. Chronic illness is a leading cause of disability in the United States, but failures to diagnose and treat chronic conditions due to gender-biased practices leave patients without accurate medical records and thus unable to apply for Social Security Disability Insurance (“SSDI”) or workplace accommodations under the Americans with Disabilities Act (“ADA”).

The rising incidence of chronic illness due to long COVID will contribute to rising healthcare costs and disability. As our healthcare system becomes more strained, lack of resources will continue to drive up costs for all Americans. Additionally, an increase in disability among American workers diminishes productivity, increases corporate costs, and weakens the American economy. Effective legal redress for gender discrimination in healthcare will likely decrease the long-term costs of chronic illness triggered by the COVID-19 virus by decreasing misdiagnosis of long COVID, particularly among women patients, which provides those disabled by long COVID with access to SSDI and ADA protections. Prompt legal reform is necessary to effectively deal with the fallout of this pandemic.

Part I of this Article demonstrates that long COVID is a form of post-viral fatigue syndrome (“PVFS”), a well-documented phenomenon. This Part also examines the link between untreated PVFS and long-term chronic illness such as myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”), which is likely to worsen over time and contribute to disability and healthcare costs. Part II discusses how entrenched gender biases in the practice of medicine have prevented and continue to prevent women patients from getting tested for COVID-19 and seeking treatment for long COVID. Next, this Part describes the costs of gender discrimination against COVID-19 long haulers--namely, increased systemic healthcare costs, the economic impact of increasing disability, and the inaccessibility of SSDI and ADA protections. Part III summarizes the elements of ACA discrimination claims and medical malpractice claims before demonstrating why these claims are unlikely to be successful for long haulers who experience discrimination that prevents timely diagnosis and treatment. Part III also recommends legal changes to make redress for gender discrimination in healthcare more accessible, which in turn will discourage such discrimination and promote the prompt diagnosis and treatment of long COVID.

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The discrimination long haulers are currently facing and will continue to face from practitioners will reverberate through their lives in the future as they attempt to navigate life with long COVID. Our legal system does not provide an adequate remedy for long haulers facing discrimination and leaves them without resources to deal with a physically and economically devastating disease. Our current legal framework also fails to provide any deterrent effect to prevent future discrimination. As COVID-19 cases continue to rise and patients continue to experience persistent symptoms, the lack of redress for discrimination in the medical field will exacerbate the burdens the pandemic is already placing on individuals, their families, and society as a whole.

Addressing the ways in which our legal system continues to promote and perpetuate sex discrimination in healthcare, and doing so sooner rather than later, will open the door for more patients to access resources that will help them cope with the aftermath of chronic illness. Offering legal redress to long haulers helps distribute the costs and burdens of the COVID-19 pandemic amongst society in an efficient way. Additionally, it will discourage gender discrimination in the medical field and promote more prompt treatment of long-term symptoms, which will lessen the economic impact of long COVID--for instance, through increasing work productivity and decreasing the economic dependence of long haulers. Our treatment of this pandemic must address not only the current dangers of viral spread, but also the long-term physical and economic health of the nation.

Cecilia Plaza is an associate attorney at O'Melveny & Myers LLP. She holds a B.A. (Franklin and Marshall College) in Sociology and Women's, Gender, and Sexuality Studies, as well as a J.D., (Columbia Law School).