COVID-19 Exposure: Health Care Provider Liability Immunity and Protections
May 13, 2020
By: Eric R. Holway
As health care professionals across the country are working to respond to the COVID-19 pandemic, providers are having to step in to fill critical shortages outside their respective field of practice. This is creating a growing concern about potential liability. In a letter dated April 2, 2020, the Colorado Medical Society implored Governor Jared Polis to expand liability protections for health care professionals in Colorado who are putting themselves in harm’s way in order to provide needed care to those suffering from the virus. Read the full letter here.
Pursuant to Executive Order 2020 058, dated May 7, 2020, Governor Polis extended the state of “disaster emergency” due to COVID-19 through June 6, 2020. Governor Polis initially verbally declared a disaster emergency on March 10, 2020, and he issued corresponding Executive Order D 2020 003 the following day.
Pursuant to C.R.S. § 24-33.5-711.5 (2016):
(2) The conduct and management of the affairs and property of each hospital, physician, health insurer or managed health care organization, health care provider, public health worker, or emergency medical service provider shall be such that they will reasonably assist and not unreasonably detract from the ability of the state and the public to successfully control emergency epidemics that are declared a disaster emergency. Such persons and entities that in good faith comply completely with board of health rules regarding the emergency epidemic and with executive orders regarding the disaster emergency shall be immune from civil or criminal liability for any action taken to comply with the executive order or rule. . .
In addition to Colorado, many other states (and Washington D.C.) have taken actions to provide or extend protections for health care workers relating to care and treatment provided during the COVID-19 pandemic. Jackson Kelly has offices in six states and the District of Columbia. The following is a brief summary of the protections each state/district current has in place.
Pursuant to IC § 34-30-13.5:
Facilities and individuals providing health care services in response to a declared disaster emergency may not be held civilly liable for care provided in response to that emergency event unless the care provided was grossly negligent or constituted willful misconduct. However, the provider must be licensed to provide health care services in Indiana or another state, and the services rendered must be within the provider’s scope of practice. See E.O. 20-02 (declaring public health disaster emergency); E.O. 20-17.
Kentucky Governor Beshear declared a state of emergency in response to COVID-19 on March 6, 2020. Pursuant to Kentucky Senate Bill 150:
A health care provider who in good faith renders care or treatment to a COVID-19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury resulting from said care or treatment, or from any act or failure to act in providing or arranging further medical treatment, if the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances.
This defense extends to providers who prescribe or dispense medications for off-label use to treat COVID-19, those who provide health care services (at the request of health care facilities or public health entities) that are outside the provider’s scope of practice, and/or those who utilize equipment or supplies outside of the product’s normal use.
Ohio House Bill 606 grants civil immunity to “a person who provides services for essential businesses and operations for injury, death, or loss that was caused by the transmission of COVID-19 during the period of emergency declared by Executive Order 2020-01D, issued on March 9, 2020."
House Bill 7, which went into effect in 2019, grants qualified immunity to health providers during a “disaster” so long as the provider is acting within the scope of their authority. “Disaster” is defined by the Bill to include "any natural or technological phenomenon or act of a human, or an epidemic and is declared to be a disaster by the federal government, the state government, or a political subdivision of this state."
On May 6, 2020, Governor Tom Wolf entered an Executive Order granting health care providers broad civil immunity against malpractice actions resulting from care provided to COVID-19 patients and allowing for certain health care providers to work outside their normal scope of practice. This immunity does not extend to acts or omissions that constitute a crime, gross negligence, fraud, malice, or other willful misconduct.
D.C. Act 23-286 (“COVID-19 Response Supplemental Emergency Amendment Act of 2020”), signed by Mayor Muriel Bowser on April 10, 2020, acts to “[e]xempt any person, employee of the District of Columbia not otherwise exempt under existing law, or contractor providing services arising out of a contract with the District of Columbia from civil liability for damages for actions taken while acting within the scope of their employment or organization’s purpose, voluntary service, or scope of work to implement the provisions of the District of Columbia’s response plan.” Immunity extends only to actions taken during the public health emergency and excludes instances of gross negligence.
On April 13, 2020, certain medical, health care and hospital associations asked Governor Justice for an executive order providing protections to health care workers in West Virginia for good faith actions taken to respond to the COVID-19 pandemic. No such executive order has yet been entered.