Protection Against Medical Malpractice Claims in the Era of COVID-19

May 1, 2020
Protection Against Medical Malpractice Claims in the Era of COVID-19

The Coronavirus (“COVID-19”) sparked both an economic and health care crisis throughout the United States. Congress and the President responded by providing a number of economic programs and initiatives delivering medical and economic relief to individuals and employers. However, health care providers on the front lines have been left out of some of these programs. Now, many medical care providers are voicing their concerns as COVID-19 has forced them into a precarious situation without adequate protection. Health care providers across the country are worried they are not receiving enough liability protection in light of the unique challenges associated with providing patient care in the midst of the COVID-19 pandemic.

Federal Protection for Volunteer Health Care Providers
On March 27, 2020 the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law with overwhelming, bipartisan support to address the economic impact of the COVID-19 pandemic. In addition to the economic support provided by the CARES Act, the Act also includes federal liability protection for volunteer health care professionals during the COVID-19 emergency response.

Section 4216 of the CARES Act states, “a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency declared by the Secretary of Health and Human Services,” but only under the following circumstances:
·        the professional is providing health care services in response to such public health emergency, as a volunteer; and
     ·         the act or omission occurs:
       o   in the course of providing health care services;
       o   in the health care professional’s capacity as a volunteer;
       o   in the course of providing health care services that are within the scope of the license, registration, or certification of the volunteer, as defined by the State of licensure, registration, or certification; and
       o   in a good faith belief that the individual being treated is in need of health care services.

This type of “Good Samaritan” statute grants liability protection to health care providers who voluntarily provide health care services. This protection also preempts and supersedes conflicting federal and state law. However, this protection appears to only apply when the underlying act or omission occurred “in the course of” providing the health care services as a volunteer. Further, the liability protection appears to only extend to services “that are within the scope of the license, registration, or certification of the volunteer.”

This conditional language has generated concern among the health care profession, as health care providers have been put into positions of providing care outside their traditional areas of specialties in response to the COVID-19 pandemic. In a recent report by Reuters addressing this same issue, “More than half a dozen emergency room doctors and nurses told Reuters they are concerned about liability as they anticipate rationing care or performing unfamiliar jobs due to staff and equipment shortages caused by the outbreak.” In response, many health care professionals have expressed their need for additional liability protection.

Although the CARES Act expressly preempts conflicting state laws, states are expressly authorized to provide “greater protection from liability” under the Act. Recently, states have recognized the need for additional liability protection and passed various measures to protect health care providers who are providing treatment during this health care crisis.

State Protection for Health Care Providers Raises the Bar for Liability
Governors in New York, Illinois, Connecticut, New Jersey, and Michigan issued executive orders raising the liability standard for injuries or deaths while working in support of the state’s response to COVID-19. These orders raised the liability standard from negligence to gross negligence, or an egregious deviation from standard care. Further, some states promulgated and adopted legislation to extend protection to health care providers during the COVID-19 pandemic, with similar provisions raising the liability standard from negligence to gross negligence or willful misconduct.  

Executive Orders

Texans Lobby to Protect Health Care Providers
Recently, organizations for the Texas healthcare industry asked Governor Greg Abbott for additional protection, similar to the executive orders and legislation of the aforementioned states. Texas Alliance for Patient Access representative Brent Cooper told a KVUE representative in a recent interview, "All we’re asking Governor Abbott to do is to raise the bar.” Cooper represents one of several healthcare groups who sent a letter to Governor Abbott asking for an executive order that would extend health care liability protection to providers during the COVID-19 pandemic.

Although Texas has not passed legislation granting additional liability protection, the American Medical Association has issued guidance for pursuing liability protections through state actions, identifying gaps in current policies, and model language legislators may use to help draft liability protection for health care providers during the COVID-19 pandemic.

Please do not hesitate to contact Jennifer A. King directly at (214) 740-3108 if you need any assistance interpreting existing federal liability protection for health care providers, or if you have any questions regarding potential lability under Texas law during this national pandemic.