A member asked for information about liability protections for physicians and other licensed practitioners assisting with the treatment of patients hospitalized for COVID-19. In our response, we summarized recently signed federal legislation to limit liability for volunteer healthcare professionals and other initiatives at the state level.

Federal Protections for Volunteer Health Professionals

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law (Public Law No. 116-136) by President Donald J. Trump on March 27, 2020, contains a provision (§ 3215) to give full immunity from liability to volunteer health professionals assisting with the COVID-19 emergency response.

Summarizing the law's protections, the MPL Association, which represents medical professional liability companies and entities, listed the following conditions that must be in place for the volunteer health professional to receive full immunity (MPL Association):

• The act or omission involved the actual provision of healthcare services
• The act or omission occurred during the declared COVID-19 public health emergency
• The act or omission occurred while providing care to COVID-19 patients or suspected COVID-19 patients
• The services provided fell within the scope of the volunteer's licensure 
• If the act or omission occurred in a state other than the state of licensure, the services fell within the scope of practice of a substantially similar health professional
• The volunteer was not compensated for the services provided

The law applies to a broad array of volunteer health professionals because it defines health professional as "an individual who is licensed, registered, or certified under Federal or State law to provide health care services."

There are exceptions to the protections. Immunity will not be granted in the following circumstances (MPL Association):

• The act or omission constitutes willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the patient
• The act or omission occurs while the volunteer is under the influence of alcohol or an intoxicating drug

During an April 1, 2020, MPL Association webinar on the Good Samaritan law and other federal and state initiatives addressing professional liability protections, MPL Association Vice President of Government Relations and Public Policy Michael C. Stinson, JM, described the federal law as a "good first step" and said that further action to extend liability protections for other healthcare providers, serving beyond a volunteer capacity, may fall to the states. The association has drafted three model state bills in an effort to extend liability protections in various ways, such as extending protections to any healthcare provider assisting with the COVID-19 response (see three versions of COVID-19 Emergency Medical Response Liability Act). Nevertheless, state legislative activity in this area has been limited, said Stinson.

State Initiatives

Given the limited state legislative response, Stinson said that some governors are enacting executive orders that could extend liability protections to healthcare professionals assisting with the COVID-19 response in their normal course of duty. He listed New York Governor Andrew Cuomo's March 7, 2020, Executive Order Declaring a Disaster Emergency in the State of New York (and additional modifications) as a "gold standard for other states to follow. The order provides broad immunity to healthcare professionals as follows:

. . . extent necessary to provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.

Additionally, on April 3, 2020, Governor Cuomo signed into law the Emergency or Disaster Treatment Protection Act, included in the state's fiscal year 2021 budget, which grants qualified immunity to hospitals, nursing homes, administrators, board members, physicians, nurses, and many other providers from civil and criminal liability arising from decisions, acts, and omissions occurring from the beginning of the governor's emergency declaration through its expiration. The bill covers liability stemming from the care of individuals with COVID-19.

Risk managers should consult with their carriers or legal counsel to identify any legal immunity protections in emergency response orders issued by their state governors or in legislative initiatives enacted by their legislatures. They may also want to check the National Governors Association website, which provides a compilation of state actions related to the coronavirus pandemic.

Additionally, risk managers at federal facilities should consult with their legal counsel to review any liability protections available to their health professionals under the Federal Tort Claims Act.

Separately, the U.S. Department of Health and Human Services Secretary Alex Azar asked state governors in a March 24, 2020, letter to take action so that healthcare professionals assisting with the COVID-19 response "feel shielded from medical tort liability." The letter also addressed actions states can take to address state licensure, scope-of-practice, certification, and recertification requirements to provide healthcare facilities flexibility in expanding their workforce. At the federal level, the Centers for Medicare and Medicaid Services has eased several federal requirements to help healthcare facilities and providers respond to the COVID-19 pandemic (see Ask ECRI: Federal Agencies Ease Regulations to Assist Healthcare Response during COVID-19 Pandemic).

Claims Activity

During the MPL Association webinar, attendees asked if there has been any increased claims activity, such as failure to diagnose cases, related to COVID-19. Although he was unaware of any claims activity to date, Stinson predicted that trial lawyers could threaten legal action against frontline providers and justify their actions at a time of national crisis by claiming that "they are protecting patients who are being ignored." Stinson dispelled rumors that medical professional liability insurers would provide blanket coverage for all COVID-19-related claims. "They are doing their best to provide coverage but not by granting blanket coverage," he said.

Risk managers can assist their organizations and providers by ensuring that they are in compliance with Centers for Disease Control and Prevention (CDC) guidance on COVID-19 and other pertinent regulations and standards. ECRI's COVID-19 Resource Center provides a compilation of many pertinent documents, including CDC guidelines.

Product Liability Protections

In a related matter, Stinson noted additional liability protections in the Families First Coronavirus Response Act, signed into law (Public Law No. 116-127) by the president on March 18, 2020. The law contains a provision (§ 6005) providing immunity from liability lawsuits for any manufacturer or user of a personal respiratory protective device during the course of the COVID-19 national emergency.