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COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations - State Executive Orders (Part 3)

May 5, 2020 | Terrence O'Toole, Jr. and John Mahon, Jr.

In part three of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the American Medical Association’s push for states to pursue liability protections for healthcare professionals during the COVID-19 emergency.

In the wake of the COVID-19 Nationwide Public Health Emergency, the Centers for Disease Control and other federal, state and local agencies have published guidelines and recommendations for healthcare providers dealing with patient care in the midst of this crisis and resulting limitations on available resources, equipment, and healthcare staff. Indeed, the evolving response to the national emergency raises many concerns, including concerns for the health of the courageous and dedicated providers themselves.

By mid-April 2020, more than 9,000 U.S. healthcare workers had contracted coronavirus, with 27 U.S. deaths, and data suggests healthcare providers may account for approximately 11% of all COVID-19 infections. The authors of this blog series cannot fathom what these providers are going through, especially those caring for COVID patients throughout an entire shift, day after day, observing terrible suffering and outcomes, even with the best care and with healthy patients. These providers cannot help but feel that everything around them, especially in the hospital, could be a source of infection.

In addition to very real concerns for the health and wellbeing of these front-line healthcare providers, another significant concern is the risk of potential legal liability arising out of adherence to published guidelines and recommendations while also endeavoring to provide quality care. This is especially important in those areas of the U.S. hit hardest by COVID-19 that have experienced unprecedented patient load and corresponding limitations on supplies and healthcare personnel. Of particular concern are those healthcare professionals providing direct care to COVID-19 patients, those who have shifted their practices to telemedicine, and those guided in treatment decisions by governmental directives.

Thus, while federal and state laws provide existing protections to healthcare professionals, the American Medical Association has encouraged each state to consider whether additional protections should be extended to address the potential liability of healthcare providers affording care in response to COVID-19, as well as treatment decisions based on government or healthcare facility COVID-19 directives. For example, the CDC has published crisis standard of care recommendations for decontamination and reuse of filtering facepiece respirators which are not approved for routine decontamination and reuse.

To that end, the AMA has recommended states provide healthcare providers immunity from civil liability and adverse action by state medical boards for injury or death:

  1. caused while providing medical services in response to the COVID-19 outbreak;
  2. caused by volunteer physicians acting in good faith for care provided in response to COVID-19; and
  3. resulting from a federal, state, or local directive, including but not limited to those to cancel, delay, or deny care as a result of the COVID-19 pandemic.

In addition to the above recommendation, the AMA has provided recommendations on the appropriate mechanisms to formalize these protections, including through new laws, the expansion of existing laws, and/or by executive order. Some states have issued executive orders or proclamations to provide protections to allow for alternative standards of care. For instance, we have thus far identified executive orders in AL, AR, AZ, CT, GA, IL, MA, MI, MS, NC, NJ, NY, RI, VT. There are pending requests/proposals in other states to issue executive orders. Many of these parallel “good Samaritan” laws existing throughout the country that have for decades afforded qualified immunity from civil liability for healthcare professionals who volunteer their services as a generous compassionate act unless they engage in willful or intentional misconduct.   

Thus far, one state that has followed the AMA’s recommendation is Illinois, which extended by executive order from the governor immunity to healthcare facilities, professionals, and volunteers from civil liability for any injury or death that occurs at a time when the facility or provider was providing healthcare services in response to COVID-19, except injuries or death caused by gross negligence or willful misconduct. Likewise, the governor of New Jersey issued an executive order providing immunity from civil damages for licensed healthcare providers for damages alleged to have been sustained as a result of their acts or omissions “undertaken in good faith” in connection with the State’s COVID-19 response.  That immunity does not extend to acts or omissions that “constitute a crime, actual fraud, actual malice, gross negligence or willful misconduct.” For another example, the New York State Senate and Assembly passed the Emergency Disaster Treatment Protection Act that grants immunity from civil and criminal liability to healthcare facilities, professionals, and volunteers for the purpose of, “promot[ing] the public health, safety and welfare of all citizens” during the pandemic.  Though the immunity does not apply to acts or omissions caused by “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm,” the Act expressly excludes unavoidable resource or staffing shortages as evidence of such conduct. 

Though the authors of this blog series believe executive orders and laws like those described above are necessary in the current climate and likely helpful in mitigating some litigation risk for healthcare professionals, they will not necessarily end all litigation. These laws have not yet had to withstand scrutiny of the courts in terms of applicability, enforceability and scope. Moreover, even if some consider healthcare professionals likely to win lawsuits or that juries are likely to be sympathetic towards them, we should remember they must still defend themselves and undergo the stress, expense, and other burdens of litigation and threatened litigation in already difficult and truly unprecedented times. See here for more information on the recommendations of the American Medical Association.

Watch for our next post in this series, which considers COVID-19 causation issues. Our prior posts in this series can be found here (part 1) and here (part 2).

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