The coronavirus disease 2019 (COVID-19) pandemic currently sweeping across the United States is a public health emergency that has had an unprecedented effect on healthcare workers. Retired physicians, students in their last year of medical school, and practitioners in other areas have all been called upon to help the overburdened healthcare system, and they have jumped in despite risks to themselves.
But are health practitioners putting themselves at risk, legally, by stepping up?
When this situation ends, there are likely to be 4 types of lawsuits that will arise.
Lawsuits Related to COVID-19 Treatment
Healthcare practitioners are being forced to function in almost battlefield situations in some states. Critical and difficult decisions about who gets ventilators, who gets trial medications, and similar choices need to be made at the spur of the moment. It’s a terrible and difficult way to have to practice medicine.
The federal government and some state governments have acknowledged this by enacting legislation protecting healthcare workers under certain circumstances. At the end of March 2020, President Trump signed into law HR 748, the “Coronavirus Aid, Relief and Economic Security Act” (CARES Act), which includes protections for volunteer healthcare professionals during the pandemic.
Specifically, the CARES Act provides that physicians and other healthcare professionals who provide volunteer medical services shall not be liable for providing such services that relate to the diagnosis, prevention or treatment of COVID-19 or the assessment or care of a patient related to an actual, or suspected, case of COVID-19. Exceptions apply for gross negligence, criminal misconduct, and providing care while intoxicated. The federal protections of the CARES Act preempt state and local laws that are inconsistent, but state laws that offer greater liability protections are not preempted.
In states that have been particularly hard hit, including New York, New Jersey, and Michigan, Governors have issued executive orders or passed legislation offering protection to doctors, nurses, and other frontline medical staff from lawsuits, as long as gross negligence is not involved.
Most states already have “Good Samaritan” laws which provide immunity to licensed physicians acting in good faith who provide care at the scene of an accident. Some states have extended these protections to public health emergencies, such as the one we are living through. These protections are especially important when you consider that many healthcare practitioners are practicing in a vastly different field than their specialty.
It is important to note that public sentiment of support for healthcare workers during the COVID-19 crisis may also limit the lawsuits filed when this is over.