By MICHAEL R. LOWE, Esq. and BRIAN C. EVANDER, Esq.
During declared emergencies the legal environment changes. Emergency declarations trigger an array of nontraditional powers designed to facilitate response efforts by the public and private sectors. Collectively, these declarations authorize an array of expedited public health powers coordinated by public health agencies in conjunction with emergency managers and other partners. The federal government and some states may declare states of both “emergency” or “disaster” and “public health emergency” in response to the same incident.
While not all legal causes of action are viable, health care practitioners and entities remain apprehensive about their potential exposure to liability risks especially during emergencies, when their actions and responsibilities may exceed the norm. Even when liability protections do apply, virtually none of the protections immunize or indemnify practitioners or entities for acts that constitute gross negligence, willful or wanton misconduct, or crimes. While health care providers might ultimately be entitled to immunity under applicable laws, and would very likely be vindicated if a claim alleging "gross negligence", or even a “standard” professional negligence type of claim, relating to the care of a COVID-19 patient went to trial, they would still need to defend themselves in court if a plaintiff alleged the applicability of one of the "exceptions" to immunity status. A court would then have to decide whether a fact issue existed on the allegations so as to permit the action to proceed further.
The New York Times (4/28, Tankersley, Savage) reports, “Business lobbyists and executives are pushing the Trump administration and Congress to shield American companies from a wide range of potential lawsuits related to reopening the economy amid the coronavirus pandemic, opening a new legal and political fight over how the nation deals with the fallout from COVID-19.” According to the Times, “the biggest push, business groups say, is to give companies enhanced protection against lawsuits by customers or employees who contract the virus and accuse the business of being the source of the infection.”
In Florida, providers are not generally civilly liable provided they act in accordance with generally accepted standards of care under the circumstances, and use such care, skill, and treatment recognized as acceptable and appropriate by other members of the profession. In addition, current emergency declarations applicable to Florida offer the following protections:
The Florida Good Samaritan Act, § 768.13, Florida Statutes, grants immunity from civil liability for any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment arising out of a public health emergency.
The immunity provided by the Good Samaritan Act applies to any damages as a result of any act or omission of providing medical care or treatment, including diagnosis. The intent is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation.
Protection from tort claims may be available under the federal Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. § 247d-6d. The PREP Act protects those that manufacture, distribute, administer, prescribe or use “Covered Countermeasures”. The PREP Act also defines the word “person” as used in the Act: A person includes an individual, partnership, corporation, association, entity, or public or private corporation, including a federal, state or local government agency or department. Key questions are whether the hospital/medical facility and its agents are “covered persons” and whether the specific care being providing is a “covered countermeasure.”
On March 17, 2020, The Department of Health and Human Services, Office of the Secretary published a Notice of Declaration in the Federal Register, Vol. 85, No. 52, Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The Secretary issued this Declaration pursuant to section 319F-3 of the Public Health Service Act (42 U.S.C. § 247d-6d) to provide liable immunity for activities related to medical countermeasures against COVID-19.
In the Notice of Declaration, Section V describes “Covered Persons,, including “Qualified Persons.” A “Qualified Person” means a licensed health professional or other individual authorized to prescribe, administer, or dispense Covered Countermeasures under the law of the state in which the Covered Countermeasure was prescribed, administered, or dispensed.
On March 24, 2020, Health and Human Services Secretary Alexander Azar sent a letter to all state governors which included the following statements relevant to liability immunity for care provided during the COVID-19 emergency: "For health care professionals to feel comfortable serving in expanded capacities on the frontlines of the COVID-19 emergency, it is imperative that they feel shielded from medical tort liability."
Providers, particularly those who may be granted a special certification to work across state lines or those who may be asked to care for patients outside of their core competencies, should make sure they are properly covered under/protected by their professional liability and medical malpractice insurance policies for claims that may arise involving a crisis standard of care under a declared state of emergency. Providers who are considering volunteering their services during the COVID-19 pandemic do not have absolute liability protection. They should check with the insurance company they previously had coverage with, as some carriers are offering coverage at no cost for physicians returning to practice as volunteers during the emergency time frame. Hospitals and other health care entities will also want to ensure that the providers working in their facilities have proper insurance coverage, either under the entity's policy or individually (or both). The importance of understanding your coverage cannot be understated. An insurance policy is a contract between you and an insurance company. You should read and understand any policy that you purchase. If you have any questions, have the company or insurance broker or agent take as much time as you need to explain policy terms to your satisfaction.
Michael R. Lowe, Esquire is a Florida board-certified health law attorney at Lowe & Evander, P.A. Brian C. Evander, Esquire and Mr. Lowe regularly represent providers, physicians and other licensed health care professionals, and facilities in a wide variety of health care law matters.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information and content in this article are intended to convey general informational only and may not constitute the most up-to-date legal or other information. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.
