A Shield Is Upon Us - COVID-19 Protections For Health Care Providers
April 29, 2021
The West Virginia Legislature recently passed the “COVID-19 Jobs Protection Act,” which is intended to provide immunity to health care providers and health care facilities (among other persons and entities) from claims arising from incidents relating to COVID-19. W. Va. Code 55-19-1 et seq. The new statute went into effect on March 11, 2021 and provides that, “[n]otwithstanding any law to the contrary,” no claims may be brought against health care facilities, health care providers, first responders, or volunteers - among other individuals - “for loss, damage, physical injury, or death arising from COVID-19, from COVID-19 care, or from impacted care.” W. Va. Code 55-19-4. Claims “arising from COVID-19” are defined as “any act from which loss, damage, physical injury, or death is caused by a natural, direct, and uninterrupted consequence of the actual, alleged, or possible exposure to, or contraction of COVID-19, including services, treatment, or other actions in response to COVID-19 . . . .” W. Va. Code 55-19-3(1). Protections do not apply to persons who engaged in intentional conduct with actual malice.
This is meant to be a significant protection for health care providers and health care facilities, who have remained on the front lines since the beginning of the COVID-19 pandemic. The protection is defined to extend not only to health care services and treatment rendered (or not rendered) due to COVID-19, but it also to policies and procedures designed to prevent or minimize the spread of the virus, testing, monitoring and tracking exposure, delaying or modifying the schedule or performance of any medical procedure, and providing products as a health care facility, health care provider, or first responder. W. Va. Code 55-19-3(1). (Definitions of health care, health care facility, and health care provider are as defined by the West Virginia Medical Professional Liability Act, West Virginia Code 55-7B-1 et seq.). Thus, these protections do not only extend to potential medical negligence claims but may also extend to employment or privacy claims as well. However, in order for the protections to apply, it must be shown that the injury, death, or other damage was the “natural, direct, and uninterrupted consequence” of COVID-19. It is unclear how this language will be interpreted at this juncture. It will be important to follow the case law, as it develops, to fully understand the true scope of these well-meaning protections for health care providers and health care facilities.
For additional information on the COVID-19 Jobs Protection Act, see “West Virginia Legislature Concludes Action on COVID-19 Jobs Protection Act” (March 11, 2021) by Danielle M. Waltz and Blair Wessels here.