State governments are seeking to protect health care workers on the frontline of the global pandemic from coronavirus lawsuits by drafting legislation that bars medical malpractice lawsuits related to the coronavirus. This comes after Health and Human Services Secretary Alexander Azar sent a letter on March 24, 2020 to all state governors, stating, “for health care professionals to feel comfortable serving in expanded capacities on the frontlines of the COVID-19 emergency, it is imperative that they feel shielded from medical tort liability.” Secretary Azar recommended states issue public guidance, “outlining the available liability protections during the COVID-19 emergency,” and calling on states to “quickly develop a list of the relevant state liability protections and waivers for health professionals during a national or state emergency.”
Already, New York and New Jersey, two of the states hit hardest by the pandemic, have passed legislation granting doctors immunity from medical malpractice lawsuits. In this article, we will take a look at the legislation and what it could mean for those who file medical malpractice lawsuits on behalf of injured patients.
New York’s Medical Malpractice Laws
New York is widely regarded as one of the most patient-friendly states in the country. With medical malpractice settlements and jury verdicts that eclipse those of practically every other state, New York does not protect its doctors with damage caps or barriers to filing lawsuits.
Nonetheless, New York was the first state to pass COVID-19 protections for doctors who are responding to the pandemic. This includes immunity from both criminal and civil actions. The question then becomes: How far do the protections extend?
In New York State, the law only applies to the treatment of COVID-19 patients, even as hospitals are using triage to determine which patients are allowed to get respirators and other life-saving medical equipment.
The bill, named the Emergency Disaster Treatment Protection Act, provides comprehensive immunity to all doctors, hospitals, and medical staff. This bill is an extension of Andrew Cuomo’s executive order limiting medical malpractice actions at this time. The bill is retroactive and will cover any potential cause of action occurring after March 7.
To Whom Does the Act Apply?
The executive order which was signed by Andrew Cuomo only applied to health care facilities whereas the Act, passed by the legislature, expands the protections to other classes of individuals such as volunteers. In other words, doctors, physician’s assistants, nurse practitioners, nurses, respiratory technicians and anyone else is covered by the language of the Act.
The law provides immunity from criminal and civil liability if:
- The health care services being provided are pursuant to a COVID-19 emergency rule
- The malpractice occurs while arranging or providing services to COVID-19 patients and that treatment impacts decisions or activities in response to COVID-19
There is also a “good faith” provision in the text of the law. However, the law does not cover intentional malice, gross negligence, reckless misconduct, or the intentional infliction of harm.
So medical malpractice cases can go forward, but only if the plaintiff is able to prove that gross negligence occurred.
Why Does This Law Need to Exist?
Covid-19 has placed health care workers in an unparalleled and chaotic environment, especially New York and New Jersey, which have been the epicenter of outbreaks in America. In these and other hotspots around the world, medical professionals are forced to make difficult decisions and often called upon to respond to situations that is not in their direct line of training. The fear of hospitals being overloaded without enough equipment (the reason behind states’ stay at home orders) and doctors having to make difficult triage decisions, as well as specialty doctors being called to the front lines to aid in the fight against Covid, has been some of the reasoning these new protections.
Meanwhile . . . Medical Malpractice Insurance is Increasing
While medical malpractice premiums should be decreased while the pandemic has placed a moratorium on lawsuits, not every state has yet to pass med mal liability protection legislation. It is expected that the federal government may pass sweeping legislation of its own, but that has yet to be decided. It makes a certain degree of sense that insurance carriers would reduce rates in places where they have passed medmal immunity legislation, but premiums may also increase in places where they do not.
Talk to a Medical Expert for Tort Lawsuits
The need for medical experts is still in demand. While all 50 states have issued emergency declarations due to the Covid 19 pandemic, there has been no systematic approach. There are variations amongst states in crisis standards of care and liability protections for physicians. Some states do offer some sort of civil liability protections for physicians and other states have adopted new protections specifically in response to the COVID-19 pandemic. These protections are conditional – any physician who engages in willful or intentional misconduct or gross negligence is still subject to civil liability. COVID-19 medical malpractice immunity varies state to state, and seems to be in a state of flux, changing in response to various and new situations that arise each day. While some protections have been enacted, medical experts are still needed in our ever-changing landscape.
Do you need a medical expert? Call Cambridge Medical Experts today to learn more about how we can help.
