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Since the beginning of the COVID-19 pandemic, healthcare systems across the globe have been under tremendous strain. In the United States, healthcare professionals not only are placed under immense pressure to care for overwhelming volumes of patients while using limited resources, but they also have to consider their risk of liability.
Providing care during this crisis has caused states to consider activating Crisis Standards of Care (CSC), which allow healthcare professionals to legally prioritize patients when using limited resources such as ICU beds and ventilators and also gives hospitals broader protection from liabilities.
CSC also allows for the reallocation of health facilities, staff, and supplies in order to meet demand during a public health crisis such as the COVID-19 pandemic.
Arizona is the first and only state to activate CSC as of this writing, and it is the first state to ever do so in US history. The decision to activate CSC was announced on June 29 as a result of the increasing amount of state healthcare resources being used; at the time, 91% of Arizona’s intensive care unit beds were filled, leaving only 156 ICU beds empty in the state.
Although other states have not yet followed suit, Arizona’s decision to activate CSC emphasizes the intensity of the situation and the need for medical providers to have the freedom to make decisions for patient treatment during the current crisis.
Medical professionals can and should be held accountable for misconduct or negligence that is harmful to patients. However, the risk of a lawsuit may make it difficult for doctors to act quickly enough to treat patients in some cases, especially during the ever-changing circumstances of COVID-19. In addition to Arizona’s activation of CSC, other measures have been put in place to protect healthcare providers throughout the nation.
Federal Liability Protections
Beginning March 24, the Secretary of Health and Human Services (HHS) conferred limited immunity from certain tort liability for professionals providing a medical response to fight COVID-19.
In April, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) was passed. This act includes measures to provide liability protection for licensed volunteer healthcare professionals as they respond to COVID-19 emergencies. These protections do not apply to cases of criminal misconduct, gross negligence, or providing care under the influence of substances such as alcohol and recreational drugs.
Other federal regulations that provide healthcare workers with protection against liability include the Volunteer Protection Act of 1997 (VPA) and the Public Readiness and Emergency Preparedness Act (PREP Act). The VPA protects volunteers under government bodies and nonprofit organizations, whereas the PREP Act gives broad protections to healthcare workers who provide care according to declarations made by the Secretary of HHS.
Furthermore, healthcare workers who volunteer at free clinics are protected by a section of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as long as the clinic agrees to sponsor the volunteer.
State Liability Protections
In addition to the federal regulations mentioned, states are individually responsible for regulating medical practices. The protections available for healthcare professionals, therefore, vary from state to state. The American Medical Association (AMA) advises that states should extend laws to cover physician liability in order to fill in any gaps in the existing protections.
Here are some of the ways states offer protection from liability to healthcare providers:
1. Good Samaritan Laws
All 50 states currently have a good Samaritan law in place, which protects healthcare workers who provide reasonable assistance to injured or ill persons at the scene of an accident. This type of statute was originally created to protect physicians from liability when giving medical aid outside their usual office, but it may offer some protection to healthcare workers in specific conditions responding to patients affected by the COVID-19 crisis.
2. Compacts
Compacts can protect volunteers who respond to a declared emergency under the specific circumstances of a specific agreement. One example of a compact is the Nurse Licensure Compact, which enables nurses to use one multistate license to offer treatment in several different states instead of just one. This could allow medical staff from areas with a lower concentration of COVID-19 patients to travel to give aid to more affected areas.
3. The Uniform Emergency Volunteer Health Practitioners Act (UEVHPA)
This law offers protection to health workers with out-of-state licenses who respond to an emergency voluntarily. It does have restrictions, however; for example, it only covers out-of-state healthcare professionals who are registered during an emergency or in advance.
Liability and Medical Malpractice During COVID-19
Such acts and laws have been enacted in an attempt to help doctors and other healthcare workers to provide timely care for their patients during crises such as COVID-19 without hesitation for fear of prosecution.
Napoli Shkolnik supports healthcare providers who are caring for the public at great personal risk and sacrifice during this crisis. However, not all medical professionals are so well-intentioned, and healthcare professionals still need to be held accountable for gross misconduct or negligence that causes harm to patients. Napoli Shkolnik can provide an experienced medical malpractice lawyer for anyone who has been a victim of medical malpractice in the form of negligence or other misconduct.
Examples of such malpractice include cases of doctors promoting fake COVID-19 tests or “cures” to the general public. Such cases are not protected under emergency, or any, liability laws, and the offenders can be prosecuted for using their position as healthcare providers to intentionally cause harm to their patients.
Latest New York Nursing Home Legislation
On July 23, New York lawmakers voted to roll back the broad immunities granted to nursing homes and hospitals in the state. Citizens are concerned that the protections could, in theory, be used to seek to bar claims brought by family members of loved ones who passed away from COVID-19 due to a facility’s negligence.
It is vital that families and loved ones understand their legal rights, especially in uncertain and ever-changing times. The legal landscape continues to evolve in response to local government’s attempts to address the pandemic through legislation.
Joseph Ciaccio, managing partner of Napoli Shkolnik’s Nursing Home Litigation Department, comments, “If a nursing home was negligent in preparing for or responding to the COVID-19 pandemic, it should be held responsible to the families of those who suffered and perished as a result. This new bill is a good first step. However, we believe there should be a full repeal of the law. Any law that completely closes the courthouse doors to individuals who have been harmed by the negligence and carelessness of another, especially those tasked with caring for our most vulnerable, is unjust.”
The new law has been approved by the governor and limits these immunities. The bill narrows immunity coverage by removing protection related to non-coronavirus cases. It also removes from these protections the “prevention” of the coronavirus from the definition of health care services.
Mr. Ciaccio points out that Napoli Shkolnik has been contacted by hundreds of people whose loved ones died due COVID-19 while residing at a nursing home. “In many of these cases, we have heard stories of complete unpreparedness, negligence, and misinformation on the part of some of these nursing homes,” he shares. “Additionally, many of these nursing homes have been found to be deficient in the care they provide by the Department of Health and Human Services, including with regard to infection control.”
We strongly encourage those who are unsure of how to proceed if their loved one passed away in a nursing home and suspect negligence to contact us to discuss their specific circumstances.