Last week, Governor Wolf issued an executive order on May 6, 2020, effective immediately, intended to provide healthcare practitioners with protection from liability while conducting emergency services activities or disaster services activities related to the Commonwealth’s COVID-19 emergency response (“COVID-Services”). The Executive Order designates certain individual healthcare practitioners “as agents of the Commonwealth solely and exclusively for purposes of immunity from civil liability due to [COVID-Services] only as related to the Commonwealth’s COVID-19 disaster emergency response.” The COVID-Services immunity from civil liability for the death of or any injury to a person specifically excludes cases of willful misconduct or gross neglect.
To qualify for such the immunity, individuals must:
- Hold a license, certificate, registration, or certification, or otherwise be authorized to practice a health care profession or occupation in Pennsylvania; and
- Be engaged in COVID-Services in certain licensed facilities, including hospitals and nursing facilities1, personal care homes2, and assisted living facilities3, or any alternate care site, community-based testing site, or non-congregate care facility.
The Executive Order seeks to ensure that healthcare practitioners are protected from civil liability amidst sweeping regulatory changes intended to expand the healthcare workforce available in Pennsylvania to address the pandemic. Governor Wolf’s efforts to supplement the healthcare workforce include expanding the scope of practice for certain providers, relaxing supervision requirement for these providers to perform services, and utilizing healthcare professionals who have not previously maintained liability coverage (e.g., retirees and out-of-state professionals). In response, healthcare professionals are called upon to perform acts and provide care in ways that they would not otherwise function in their ordinary course of business
The Executive Order will remain in effect until the disaster emergency has concluded. The order also made clear that immunity does not extend to “health care professionals rendering non-COVID-19 medical and health treatment or services to individuals.”
Potential Impact On Medical Malpractice
A quick read of this executive order might make one believe that healthcare providers are immune to all lawsuits involving the diagnosis, care, and treatment of individuals with COVID-19. However, a deeper dive is necessary to consider important limitations. Many COVID-related medical malpractice cases will likely center around allegations of gross negligence.
In connection with the Mental Health Procedures Act, gross negligence has been defined as a “form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.” Pennsylvania Standard Civil Jury Instruction No. 13.50 defines gross negligence as “significantly worse than ordinary negligence” and requires proof that the defendant’s conduct “significantly departed from how a reasonably careful person would act under the circumstances.” Under this jury instruction, a person can be grossly negligent by acting or failing to act. In addition, gross negligence is less than reckless conduct.4
However, in many cases, Pennsylvania courts have struggled to define gross negligence in civil matters. Combine that with opposing parties’ interpretations of gross negligence, and it is likely that courts will be forced to set precedent as to what constitutes gross negligence in these medical malpractice cases. Assuming that COVID-19 is the alleged cause of damages and/or death of a patient, an obvious example stems around the timing/failure of timing of the diagnosis.5 Our knowledge about this virus is changing every day. We are learning about the manifestation of the virus, symptomatic patients vs. asymptomatic patients, and patients that are at higher risk of contracting and dying from the virus. For patients who were not quickly diagnosed with COVID-19, healthcare providers will likely be forced to defend their care and treatment of the patient and provide support that an earlier diagnosis was not warranted and/or a gross deviation from the standard of care.
Another example stems from differing views and/or opinions as to whether individuals of different races, gender, age, or class received care and treatment below the standard of care. Although the intentions of the executive order mean well, the scope of the order is initially seen in a vacuum and assumes that everyone receives the same level of care. It is not far-fetched to assume that a gross-negligence claim could be made alleging a healthcare provider’s care and treatment grossly fell below the standard of care due to his/her explicit/implicit biases, and that such biases, caused a significant departure from a reasonable person under the same circumstances. As we know, medical malpractice cases require expert testimony and all it takes is one expert to support the allegation.
Notwithstanding the gross negligence claims, with the onset of this executive order, healthcare providers must be more vigilant with their care and treatment of patients to avoid medical malpractice cases. We must remember that this immunity does not apply to health care professionals rendering non-COVID-19 medical and health treatment or services to individuals. Immunity granted under the order recognizes the prior efforts of the Commonwealth to expand the healthcare workforce available to treat COVID-19 patients in Pennsylvania. These efforts range from granting flexibility to expand a provider’s scope of practice and relaxing supervision requirements to allow different levels of health care professionals to provide a broader level of care to patients. Governor Wolf’s executive order specifically addresses the increased volume of cases, medical hours, and the shortage of staff and/or employees due to this pandemic. That said, a majority of healthcare providers’ practices are not solely dedicated to treating COVID-19 patients. When healthcare providers are treating a non-COVID patient, they must remember that the same liability immunity will not apply.
Guidance to Protect Yourself
To protect themselves, healthcare providers should consider the following when treating patients:
- Differential Diagnosis. Knowing that this virus manifests in different ways, at different times, and for different people, healthcare providers should pay significant attention to COVID-19 as a potential diagnosis in patients, including those that are not exhibiting “typical symptoms.” If ruling out COVID-19, make sure to document the specific reasoning for ruling out this virus as a potential problem/cause/factor.
- Documentation. Lack of documentation is one of the largest issues in medical malpractice cases. Healthcare providers should be clear and concise in their documentation regarding the care and treatment of all patients. Healthcare providers do not want the lack of documentation to insinuate that they grossly deviated from the standard of care. This holds especially true for those healthcare providers caring for and treating patients outside of their specific practice or providing such care in different forums such as telemedicine. In addition, because individuals are not able to visit their loved ones and family members during this pandemic, they are not able to play an active role in their medical care. These factors place a higher scrutiny on healthcare providers’ treatment from patients and family members, which could influence whether they file a lawsuit. Sufficient documentation can be critical.
- Take care of yourself too. When you are tired, you are more likely to make mistakes. With increase in patients, decrease in staff, and increase in hours worked, it is essential that healthcare workers take care of themselves. If you need to rest, then rest. Your practice is likely not limited solely to COVID-19 patients, and you are still subject to the usual standard in medical malpractice claims.
- Implicit/Explicit biases. Everyone has certain biases, known and unknown, and it is important that healthcare providers treat all patients based on their presentation, patient history, and symptoms. Be familiar with those individuals/groups that are more susceptible to contracting/dying from the virus. Again, documentation is crucial. Thank you! During these difficult times, we appreciate your sacrifice, service and dedication to keeping us safe.
1 Health Care Facility includes, but is not limited to, a general, chronic disease or other type of hospital, a home health care agency, a home care agency, a hospice, a long-term care nursing facility, cancer treatment centers using radiation therapy on an ambulatory basis, an ambulatory surgical facility, a birth center regardless of whether such health care facility is operated for profit, nonprofit or by an agency of the Commonwealth or local government. The term health care facility shall not include an office used primarily for the private practice of a health care practitioner, nor a program which renders treatment or care for drug or alcohol abuse or dependence unless located within a health facility, nor a facility providing treatment solely on the basis of prayer or spiritual means. 35 P.S. § 448.802a
2 55 Pa. Code §2600.4.
3 55 Pa. Code §2800.4.
4 In medical malpractice matters punitive damages may be awarded for reckless, willful, and wanton conduct.
5 The cause of death on a patient’s death certificate can also potentially give rise to general medical malpractice claims despite a patient’s diagnosis of COVID-19.