May 29, 2020
Area(s) of Interest: Professional Liability
Congress will be considering a bill – the Coronavirus Provider Protection Act (HR 7059) – that would provide health care professionals, and the facilities in which they work, protections from COVID-19-related lawsuits. The legislation was introduced by representatives Phil Roe, M.D. (R-Tenn.) and Lou Correa (D-Calif).
Developed in collaboration with the American Medical Associations (AMA), the national specialty societies, a few state medical associations, and the Health Coalition on Liability and Access (HCLA), the narrowly crafted liability protections would apply only when:
- The act or omission occurred during the declared COVID-19 public health emergency or within 60 days of termination of the emergency;
- The act or omission occurred while providing or arranging care;
- The act or omission was taken based on direction or guidance from any federal, state, or local official/department/agency
- The act or omission was taken due to a lack of resources attributable to the declared emergency.
- The services were within the provider’s scope of licensure/certification, without regard as to whether the service fell within the usual scope of practice; and
- The services were provided in good faith.
The California Medical Association (CMA) and the California Hospital Association (CHA) have also urged Congress to pass legislation that includes protection against unfair lawsuits for health care workers.
Physicians and hospitals are on the front lines of a crisis unlike any our nation has ever faced. Every hospital and physician in California was called upon to prepare for a surge of acutely ill patients. Providers stepped up, responding to the call to action by ceasing non-essential services and creating new patient care units in tents, arenas, convention centers and other unlikely spaces.
The pandemic has created a public health emergency that is rapidly altering the provision of health care services across the country based on guidance and recommendations from the Centers for Disease Control and Prevention, the U.S. Department of Health and Human Services, and other federal, state, and local government directives.
Physicians were under public health orders to refrain from providing non urgent care, such as cancer screenings and annual exams. That inevitably will mean that some diagnoses were missed or delayed. Physicians were asked to delay non-urgent surgeries to make beds available for COVID-19 patients. That meant delaying care to patients who need biopsies, heart valve replacements, or gall bladder removals. Saving the lives of patients afflicted with a new pathogen means trying drugs, doses or procedures without full knowledge of all the ramifications.
Health care providers need assurance they will not later be judged or sued when abiding by the government’s directives to create surge capacity, or when making care decisions based on their best judgment and determination at the time.
As providers continue their work in the coming weeks and months, we must give them the support they need to make the best possible decisions, including protections from future legal action, as long as that protection does not excuse willful malicious intent to cause harm.