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COVID-19: Immunity Challenges Bring Uncertainty for Health Care Providers

Posted by Ian Matyjewicz Thursday, November 05, 2020

Doctors, nurses, and other health care professionals have risked their lives to care for patients during the COVID-19 pandemic. Faced with an unprecedented health crisis, their primary focus remains the well-being of their patients.

In some 40 states — as a result of preexisting laws, executive orders, or new laws — health care providers responding to COVID-19 can benefit from legal immunity or enhanced protection from liability. But New York state — the early epicenter of the pandemic — has now carved back the legal immunity it granted to health care providers, including hospitals and nursing homes. Other states could do the same, at a time when case numbers and hot spots continue to fluctuate, leaving the medical community with an elevated risk of liability.

The New York Experience

In March, New York governor Andrew Cuomo issued an executive order that shielded health care providers from civil and criminal liability arising from any act or omission by health care providers that resulted in injury or death, except in cases involving gross negligence. The following month, New York enacted the Emergency or Disaster Treatment Protection Act, which granted broad legal immunity to health care providers for the planning, diagnosis, and treatment of all patients whose care is affected by the ongoing pandemic, except for cases involving gross negligence.

On August 3, however, the state enacted legislation that prospectively rolls back some of the protection that had been provided earlier. Going forward, legal immunity only applies to the diagnosis and treatment of patients with COVID-19, but not to a failure to prevent transmission of the disease. As a result, health care providers in New York may now be liable for patients and residents who contract COVID-19 in a health care facility, for failing to adequately plan for the pandemic, and for negative outcomes for patients without COVID-19 whose care was delayed or otherwise affected by the pandemic.

Uncertainty also looms in Michigan, where protection from civil and criminal liability that was originally granted to health care providers was recently rescinded. Health care providers in states with immunity grants also face potential hurdles before they are shielded from liability. For example, New York’s immunity protections do not prevent a medical provider from being sued. Any medical provider seeking to assert immunity would be required to defend the suit and litigate the issue of whether immunity applies. Additionally, some state immunity statutes may be the subject of constitutional legal challenges, which can take years to be resolved.  

Health Care Providers Brace for Spike in Activity

The rollbacks in legal protection are taking place at a precarious time. Elective procedures that were halted or drastically reduced early in the pandemic are now resuming. And medical experts expect a surge of COVID-19 cases in the coming weeks, coinciding with seasonal illnesses, which could lead to a spike in patients requiring treatment.

As more patients seek care, providers could face overcrowded hospitals and a shortage of equipment and critical supplies, including personal protective equipment (PPE) for frontline workers — two problems that have plagued many communities as COVID-19 has spread. If more states carve back their immunity grants, the lack of legal protection could contribute to an uptick in litigation against health care providers.

Take Protective Action

Despite these potential legal risks, health care providers will remain focused on delivering the best care to patients. As the industry prepares for more COVID-19 patients, it’s important for organizations to take the following precautionary measures:

  1. Talk to your legal counsel to understand changes in relevant state and federal legislation and how these changes could affect your potential liability.
  2. Engage with your broker and insurers to review your professional liability and general liability insurance programs, focusing on batch language, notice provisions, and exclusionary language that may apply to claims emanating from COVID-19.
  3. Start renewal discussions early to allow adequate time to evaluate different coverage options. This is particularly important as many carriers are adding exclusionary language for claims related to COVID-19.
  4. Be prepared to articulate to insurers how the pandemic has affected your organization and what steps have been taken to mitigate your risk exposure.  

Immunity from liability can provide an important protection for health care providers in the fight against COVID-19. However, uncertainty regarding the future of state immunity grants means that organizations should review their insurance coverage to ensure the broadest protection possible from civil liability as the pandemic continues. 

Ian Matyjewicz