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Law360 (August 24, 2020, 4:58 PM EDT )
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| Kay Van Wey |
As overcrowding crippled the health care system, lawmakers began to consider the threat of medical malpractice lawsuits against doctors who were forced to make difficult decisions about allocating lifesaving resources. One of the questionable ways state governors and lawmakers chose to combat the emergency was by issuing legislation that would protect health care providers with medical malpractice immunity, a controversial decision that could threaten the safety of our most vulnerable.
While the Coronavirus Aid, Relief and Economic Security, or CARES, Act may have come as a boon to the many health care professionals who are toiling day and night to help the infected, the rest of us should not lose sight of the real dilemma.
Medical errors existed before COVID-19, and while there were already laws in place to protect health providers, adding another layer of protection through the CARES Act and related state laws does not better our health care system, let alone make it safer for our patients.
The CARES Act
On March 27, President Donald Trump signed the CARES Act, which included a $2 trillion stimulus package and protections for volunteer health care workers from liability in the absence of reckless conduct. According to the American Medical Association, the CARES Act clarifies that physicians and volunteer health care professionals shall not be liable for providing services that relate to the diagnosis, prevention or treatment of COVID-19.
They're also not liable for the assessment or care of a patient related to an actual or suspected case of COVID-19. Limited exceptions apply for gross negligence, criminal misconduct and providing care while intoxicated.
These protections preempt state and local laws that are inconsistent with the CARES Act. However, state laws that provide greater liability protections are not preempted.
Some state lawmakers took additional steps to protect their health care providers during COVID-19. These states wanted to ensure that medical providers had the freedom to do their best during the extenuating COVID-19 circumstances without the fear of being sued. Not only was this unnecessary, but it was also a political move to placate the public.
Most of the COVID-19 patients who come into a hospital come in through emergency rooms. Many states already had laws governing emergency care, under which an emergency room is only held responsible for medical error if gross negligence is proven. The legal protection in such cases was already in place long before COVID-19 came about.
So what is gross negligence? Across many states in our country, it essentially implies more than a momentary lapse of judgement. A situation or decision by a health care professional that disregards the rights and welfare of others is categorized as gross negligence.
In some states, gross negligence may mean specific intent to harm. For example, in Texas, gross negligence requires an act or omission that involves an extreme degree of risk, yet the perpetrator still continues to act with conscious indifference to the rights, safety or welfare of others.
What the Act Means for Medical Errors
The CARES Act actually complicates some areas of medical practice, such as elective procedures that are carried out daily in hospitals. In the history of medicine, many of the medical errors in health care systems are connected to these procedures — for example, someone leaving a pair of scissors in the patient's abdomen.
Even with alarmingly high rates of existing medical errors, there are laws that have been put in action, long before COVID-19, that protect these doctors and nurses. But in most cases, these errors don't even see light of the day, because they are taken care of before the patient suffers.
Regardless of the consequences that a patient goes through, an error is an error. We need a system in place that keeps these situations in check. Otherwise health care professionals' sense of responsibility is diluted, and a higher risk of successive errors is created, taking a toll not only on patients but also on the emotional and mental well-being of health care workers.
We now have immunity laws that specifically apply to COVID-19 care, and laws that apply to all health care rendered during COVID-19. Given an already high rate of preventable medical errors, this only makes matters worse.
It's time to reexamine how our health care system evaluates errors, especially during COVID-19. Such errors weren't okay before COVID-19, and we shouldn't make it easier for them to happen during one of the worst pandemics of modern times.
State-by-State Breakdown of Medical Immunity During COVID-19
Many states embraced the CARES Act, customized it and implemented it immediately. By April 17, six states had granted medical immunity during COVID-19 — including New York and New Jersey, two of the states hit hardest by COVID-19.
New York
On April 2, New York passed the Emergency Disaster Treatment Protection Act, which provides broad immunity to hospitals, nursing homes, nurses, physicians and other health care providers for COVID-19 treatments. In fact, the bill also legally protects a provider for any type of care delivered during the COVID-19 pandemic.
The law was passed as part of New York's budget bill, and followed an executive order Gov. Andrew Cuomo issued on March 23, which also granted temporary immunity to retired and out-of-state health care professionals.
New Jersey
On April 14, Gov. Phil Murphy signed legislation, retroactive to March 9, which protects health care providers and facilities from civil and criminal liability during treatment of patients for COVID-19. No medical worker will be held accountable for patient deaths or injuries due to their actions or inactions.
The law also immunizes health care providers for good-faith treatment provided via telehealth, as well as treatment rendered outside of a physician's specialty. Additionally, it provides temporary certification for emergency medical technicians with expired licenses, and active paramedics from out of state.
According to one of the bill's sponsors, New Jersey Senate Minority Leader Tom Kean Jr., health care facilities should not be vulnerable to lawsuits because they are "doing the best they can."
"When our region has been hit as hard by the coronavirus as anywhere in the world, we must recognize that our health care facilities, doctors and nurses are doing the best they can with what they have," Kean said. "They deserve the assurance that they will not be punished for trying to save lives under these unbelievably difficult circumstances."
We can agree with this statement, but the fact is that these providers already had the needed assurances, under preexisting laws. The legal standard was sufficiently flexible even prior to COVID-19: a health care provider doing the very best they can will not be held liable.
A doctor doesn't have to be right, but must only act reasonably and prudently when making medical decisions. Creating a new law that potentially undermines the effectiveness of the preexisting law neither delivers safety for patients nor bolsters the health care system.
Other States That Granted Medical Immunities
On March 10, Gov. Ned Lamont of Connecticut issued an executive emergency order granting immunity to health care providers and facilities providing good-faith medical services, for "any injury or death" resulting from an "act or omission" in the course of providing medical services, in support of the state or federal government's response to COVID-19.
On March 29, Gov. Gretchen Whitmer of Michigan issued an executive order easing regulations for certain health care professionals to get them on the front lines more quickly, and reinforced a state disaster relief law that gives broad immunity to health care providers during emergencies.
On April 1, Gov. J.B. Pritzker of Illinois issued an executive order granting civil liability immunity to health care providers providing medical treatment in support of the COVID-19 outbreak, except for gross negligence or willful misconduct.
On April 8, Gov. Charlie Baker of Massachusetts announced the passage of a bill that would protect health care professionals, including physicians, nurses and emergency medical technicians, from civil liability "when the care that they provide is impacted by the COVID-19 emergency." The bill also provides liability protection for certain health care facilities such as nursing homes, assisted living facilities and community health centers.
Currently, there are more than 30 states that offer some level of immunity, including executive orders and enacted legislation, with respect to care provided during the pandemic.
After the Pandemic Ends
This year has been like few others in our nation's history. We reacted quickly to a serious problem. Our frontline health care workers came to our rescue, and are still fighting against the virus so that we may feel safe in our homes. For that, we will be forever indebted to them.
But we must also remember that this pandemic will come to an end. The new laws we put in place might seem to protect us this year, but they will need to be reevaluated at the earliest opportunity.
As our nation begins to reopen, we will witness a surge in scheduling of elective procedures across the country, followed by a likely rise in preventable medical errors — an issue that existed long before COVID-19. With the new laws in place, we will be giving a pass to health care providers who are careless. This is unacceptable and dangerous.
While the experience of the pandemic is overwhelming, we must not forget that the types of medical errors that were an issue six months ago will likely soon resurface on an even larger scale. The pandemic may be the "new normal," but we will be reverting to our old normal in the near future. It is time we start focusing on how to handle what's to come; otherwise, there is a whole new disaster waiting to happen.
Kay Van Wey is a founding partner at Van Wey Presby & Williams PLLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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