COVID 19-Related Liability Protections for Healthcare Providers

COVID 19-Related Liability Protections for Healthcare Providers

Read about the various liability protections available for healthcare providers at the federal and state levels during COVID 19 pandemic.

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The new coronavirus COVID-19 pandemic has put the global population under an unexpected lockdown, and created a public health emergency. In healthcare settings, already bogged down by an increasing number of patients, accurate documentation becomes crucial. Accurate medical records are vital to ensure appropriate care for each patient. Moreover, they are also important in case malpractice lawsuits arise. To streamline the medical review process in injury litigation, attorneys utilize medical review services. The present pandemic is forcing many healthcare facilities to change the provision of healthcare services based on guidance provided by the CDC (Centers for Disease Control and Prevention) and other federal, state and local government rules. However, there is a concern regarding the potential liability of physicians and other healthcare providers treating patients through this pandemic, providing high-quality patient care while also staying compliant with these recommendations and guidelines. New legislation is being introduced to protect healthcare workers from being exposed to malpractice risk in the present scenario.

Federal Legislation •

The CARES (Coronavirus Aid, Relief and Economic Security) Act was signed into law by the U.S president on March 27 this year. It provides additional federal liability protections for volunteer healthcare professionals during the COVID-19 emergency response. The law makes it clear that healthcare professionals offering volunteer medical services during this public health emergency shall not be liable for providing such services that relate to the diagnosis, prevention or treatment of COVID-19 or the evaluation or care of an actual or suspected COVID-19 patient. There are limited exceptions that apply for elements such as criminal misconduct, gross negligence, and providing care in an intoxicated state. These protections preempt state and local laws that are inconsistent with the CARES Act. State laws that provide greater liability protections are not preempted.

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The PREP (Public Readiness and Emergency Preparedness) Act provides broad immunity protections to healthcare providers who administer or use countermeasures covered by declarations issued by the HHS Secretary on

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March 17, 2020. These countermeasures include antiviral medications, other drugs, vaccines, biologics, diagnostics and/or devices to treat, diagnose, cure, prevent, or mitigate COVID-19 or the transmission of SARS-CoV-2 or a virus mutating from it. •

The VPA (Volunteer Protection Act of 1997) provides liability protections to volunteers including physicians who are performing services for government entities or non-profit organizations. The volunteer must have a proper license, and must be certified and authorized by the appropriate authorities as required by the law in the state where the harm occurred.

The protections apply to an uncompensated volunteer for acts of ordinary negligence committed within the scope of his/her responsibilities. A national emergency or public health emergencydeclaration is not required for these protections to apply. Physician volunteers are not liable for economic damages caused when they provide medical services within the scope of their practice. Limited exceptions apply for gross negligence and reckless misconduct. The protections offered preempt state and local laws that are inconsistent with the VPA. State laws that offer greater liability protections are not preempted. The HIPAA (Section 194) also extends eligibility for Federal Tort Claims Act liability protections to volunteer health professionals at qualifying free clinics; the clinic must sponsor the physician by submitting an application to the Health Resources and Services Administration.

State Legislation Physicians

providing

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physicians,are provided liability protections in U.S. states. •

50 states have Good Samaritan statutes that provide immunity to licensed physicians acting in good faith who provide voluntary care at the scene of an accident. Some states extend these protections to cover volunteer physicians who provide care as part of an official response team in a public health emergency, state of emergency, or other state declared disaster proclamation issued by governors. Liability protections are provided for

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volunteer physicians providing care in a free clinic, non-profit hospital, or as part of a government organization. •

Compacts or Uniform Laws passed by states include liability protections for volunteers responding to a declared emergency. These protections are not automatic and are limited in how they can be applied. o An example is the EMAC (Emergency Management Assistance Compact) which has been enacted by all 50 states. This provides immunity to employees or officers from the rendering state to the state requesting the support, in which these officers/employees are considered agents of the requesting state for tort liability and immunity purposes. If EMAC protections are to apply, one state must make a request to another state (s) via the Compact and the request must be formally accepted by the rendering state. o The UEVHPA (Uniform Emergency Volunteer Health Practitioners Act) provides immunity of civil liability to out-of-state licensed health professionals for voluntary care provided in a declared emergency. Limitations are there as to whom this Act applies, including only out-of-state physicians who have registered in advance or during an emergency. The UEVHPA has been enacted in17 states, D.C AND U.S. VIRGINIslands since 2007 –AR, CO, GA, IL, IN, KY,LA, ME, NV, NM, ND, OK, TN, TX, UT, WA, WV.

The pandemic we are facing now is unprecedented and of such huge proportions that various measures are being taken at the federal and state levels to handle the challenges effectively. The most important consideration is to safeguard frontline healthcare providers who are risking their lives to save other lives. In keeping with the current requirements and emergency situation, the Secretary of Health and Human Services has encouraged Governors to formulate a list of liability protections for in-state as well as out-of-state physicians, volunteer physicians, relicensed or recently licensed medical professionals, services provided via telehealth and so on.

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