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Jun 15, 2020

Liability of Healthcare Providers Amid the COVID-19 Pandemic

By: Juliann Wilbar

Many attorneys may be expecting a surge of medical malpractice lawsuits coming out of the COVID-19 pandemic. However, recent executive orders and legislation now limit providers’ exposure to medical malpractice liability arising during the pandemic.

First, President Trump signed into law the Coronavirus Aid, Relief, and Economy Security (CARES) Act on March 27, 2020. The CARES Act provides temporary immunity to “volunteer” health care providers. Specifically, the Act states that such volunteers, with a few exceptions, “shall not be liable under Federal or State law from any harm caused by an act or omission of the professional in the provision of health care services” during the COVID-19 public health emergency.

To qualify for immunity, the volunteer provider must be working within their specialty and hold a good-faith belief that the patient is in need of health care services. Though the Act does not apply to gross negligence, recklessness, or criminal or willful misconduct, it does pre-empt inconsistent state laws.

In addition, the Public Readiness and Emergency Preparedness (PREP) Act provides broad immunity to certain health care professionals (Covered Persons) who administer or use countermeasures, such as diagnostic or other devices, medications, therapies, or vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19 (Covered Countermeasures). Like the CARES Act, an exception exists in cases involving willful misconduct, and the scope of the Act depends on the facts and circumstances of each individual case.

Further, many states had Good Samaritan statutes in place before the COVID-19 outbreak. For example, in Texas, Section 74.151 of the Civil Practice and Remedies Code provides that a person who, in good faith, administers emergency care is not liable for civil damages for an act performed during the emergency, unless the act is willfully or wantonly negligent.

Finally, many states have issued executive orders or passed legislation protecting doctors, nurses, and other hospital staff from medical malpractice lawsuits arising out of the COVID-19 pandemic.  For example, New Jersey Governor Phil Murphy signed an executive order on April 1, 2020 providing broad civil immunity for health care professionals. Further, New York Governor Andrew Cuomo signed Executive Order 202.10, which provides immunity from civil claims against health care providers for injury or death alleged to have been sustained directly as a result of an act or omission by such professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak (unless caused by gross negligence).

On March 24, 2020, the Secretary of Health and Human Resources sent a letter to all state governors asking that they take immediate action along these lines, stating “it is imperative that [health care professionals] feel shielded from medical tort liability.” The letter recommended that “[s]tates should issue guidance summarizing the statutory scope of protections offered under their laws and the process necessary to attach those protections to a health professional's service” to prevent state variations from confusing or deterring health care professionals during the COVID-19 emergency. It is expected that states like Texas, which have not yet issued guidance regarding malpractice liability during this time, will soon be issuing such directives.