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Medical Liability Protection During COVID-19

ACP Chapter Action Tool Kit

Prepared by ACP’s Division of Governmental Affairs and Public Policy

April 17, 2020

Summary

The COVID-19 public health emergency has raised concerns about the potential liability of physicians and other healthcare professionals who are responding to this pandemic and are being asked to work/practice medicine under near unprecedented circumstances. On March 27, the President signed into law H.R. 748, the “Coronavirus Aid, Relief and Economic Security Act”(CARES Act), which includes language that provides additional federal liability protections for volunteer health care professionals during the COVID-19 emergency response. The CARES Act states that physicians and other health care professionals who provide volunteer medical services during the public health emergency related to COVID-19 shall not be liable for providing such services that relate to the diagnosis, prevention or treatment of COVID-19 or the assessment or care of a patient related to an actual or suspected case of COVID-19.

Many states also have compacts or uniform laws that include some liability protections for volunteers.  The Emergency Management Assistance Compact (EMAC), as enacted in all 50 states, eases the deployment of resources from one state to another state with a declared emergency. EMAC provides protection to personnel from the rendering state by deeming them agents of the requesting state, thereby covering them under the Tort Claims Act of the requesting state. The Uniform Emergency Volunteer Health Practitioners Act (UEVHPA) also grants immunity from civil liability to out-of-state licensed health professionals for gratuitous care provided in a declared emergency. According to the National Conference of Commissioners on Uniform State Laws, the UEVHPA has been enacted in 17 states, D.C. and U.S. Virgin Islands since 2007 (AR, CO, GA, IL, IN, KY, LA, ME, NV, NM, ND, OK, TN, TX, UT, WA, WV).

While current law in some states may provide sufficient liability protections for crisis and emergency care, physicians need assurance and protection from liability for taking on new responsibilities, roles, and changes in how care is delivered due to COVID-19.  These include:

• suspension of most elective in-person visits and replace them with virtual visits to the extent possible as requested by the Centers for Disease Control and Prevention (CDC) and other public health authorities;
• providing treatments or care outside their general practice areas and for which they may not have the most up-to-date knowledge;
• coming out of retirement to alleviate workforce shortages related to the growing health crisis caused by the COVID-19 pandemic;
• inadequate supplies of safety equipment that could result in the transmission of the virus from patient to physician and then to additional patients, or directly from one patient to another;
• shortages of equipment, such as ventilators, that can force facilities and physicians to ration care;
• inadequate testing that could lead to delayed or inaccurate diagnosis; and
• delays in treatment for patients with conditions other than the Coronavirus.

In these and other scenarios, physicians and other clinicians face the threat of medical liability lawsuits due to circumstances that are beyond their control. These lawsuits may come months or even years after the current ordeal when the public memory of their sacrifices may be forgotten.

While ACP supports broader congressional and state action to provide liability protections for physicians and other clinicians and the facilities in which they practice as they continue their efforts to treat COVID-19 patients under unprecedented conditions, such protections should not apply to gross negligence or intentional harm to patients.

ACP’s Executive Committee of the Board of Regents, on behalf of the Board of Regents, recently approved two policy statements that should guide chapter advocacy on liability issues:

ACP Chapters should refer to these policy statements as they consider engaging in advocacy on expanded medical liability protections. Although we cannot provide legal advice or review specific state bills or letters to expand liability protections, chapters should follow the above guidance from ACP national in making decisions on supporting additional protections and must not take positions that are contrary to ACP policy including on non-discrimination. If you have policy questions or comments about the ethics and non-discrimination issues, please feel free to contact Lois Snyder Sulmasy, JD at lsnyder@acponline.org.

Action:

ACP chapters should urge their state officials to provide physician (and facility) immunity from civil liability for harm:

• caused in the course of providing medical services in response to the COVID-19 outbreak
• caused by volunteer physicians acting in good faith for care provided in response to COVID-19.
• resulting from a federal, state or local directive, including but not limited to those to cancel, delay, or deny care as a result of the COVID-19 pandemic, provided that such directive, guidance, policy or procedure does not result in a physician participating in discrimination against a class or category of patients (e.g., based on age, race, ethnicity, disability, sex, gender identity, social status or other personal characteristics) as stated in ACP’s policy on stewardship and allocation of health care resources during health system catastrophes including COVID-19.

Chapters may also provide comments on draft state crisis standards of care to emphasize that they should be consistent with ACP policy opposing discrimination against a class or category of patients (e.g., based on age, race, ethnicity, disability, sex, gender identity, social status or other personal characteristics).

Resources