Protecting Our Health Care Providers from Liability in a Pandemic
While COVID-19 creates profound medical concerns for health care providers, it also creates fear of potential lawsuits. Clinicians are forced to ration scarce resources, such as ventilators, when there is an inadequate supply. Medical professionals describe chaos in hospitals that makes it extremely difficult to treat all patients appropriately. Patients have had elective surgeries postponed indefinitely. Worse yet, some, including cancer patients, have had essential operations cancelled. All of these circumstances could lead to serious patient harm and subsequent litigation.
Medical professionals are worried, and rightly so. At this critical time, however, clinicians should be able to focus entirely on saving lives rather than on concerns about potential lawsuits.
These legal concerns are not new. In 2007, I spent a sabbatical semester at the Centers for Disease Control and Prevention (CDC) and worked on public health emergency preparedness in the aftermath of Hurricane Katrina. I wrote an article calling for comprehensive immunity protections for health care emergency responders. Such protection is more important than ever in the current pandemic.
United States law already provides immunity for some emergency responders. For example, some Good Samaritan laws protect volunteer responders from liability for negligent acts, while the Public Readiness and Emergency Preparedness Act provides immunity for the manufacture, testing, and administration of “countermeasures” in pandemics. Countermeasures are products such as drugs and devices that are authorized for emergency use. Federal and state government officials are also protected through qualified immunity, which covers those acting in their official capacities.
But existing emergency response provisions leave a startling gap. Paid health care providers may find themselves without immunity protection for much of the pandemic response work they do. Many providers work at hospitals that are overcrowded and short on supplies. What if they have to choose among desperately ill patients and deny some of them ventilators? What if a patient dies because her surgery was cancelled? What if a doctor mis-classifies someone’s surgery as elective rather than essential? What if doctors are called upon to work outside their areas of specialty or outside of state-of-the art hospital settings? Available protections for these scenarios depend on state law, which are highly variable and inconsistent.
A few governors have heeded medical professionals’ calls for relief. The governors of New York, New Jersey, and Illinois recently issued executive orders with generous immunity provisions.
But this matter is too important to be left up to the discretion of busy governors in the midst of a pandemic. The public health emergency laws of all states should feature comprehensive immunity protections.
The statutes should provide that:
- Health care providers will not be liable for harm caused by good-faith activities in response to public health emergencies.
- Health care providers are covered whether they are volunteers or paid workers.
- Health care providers will remain liable for willful misconduct or gross negligence.
- Protections will be triggered by a state government’s declaration of a public health emergency.
This approach is balanced and would both encourage emergency response work and deter intentional misconduct. Immunity would provide much needed assurance to our overwhelmed and dedicated medical professionals, freeing them to concentrate on their life-saving work without worrying about the legal consequences of their good faith efforts.
Sharona Hoffman is a Professor of Law and Bioethics at Case Western Reserve University School of Law. For additional details see https://sharonahoffman.com/.