By Valerie Gutmann Koch
Liability protections may be necessary when, due to the circumstances of the emergency, a state faces scarce resources (such as ventilators or ICU beds) and the state activates its crisis standards of care (CSC). A CSC authorizes the legal prioritization of patients for scarce resources based on changing circumstances and increased demands. CSCs provide a mechanism for reallocating staff, facilities, and supplies to meet needs during a public health emergency.
Notably, and by necessity, the standard of care that clinicians may be able to provide during the COVID-19 pandemic may depart significantly from standard non-emergency medical practice. In a non-crisis setting, the prevailing medical standard of care focuses on the needs of each individual patient and is centered on the principle of informed consent. In a public health emergency, however, such concentrated care may be impossible or inadvisable due to: (1) resource limitations and (2) the goal of saving as many lives as possible.
Exposure to Legal Liability
Adhering to CSC may therefore expose health care providers and entities to considerable costs and burdens, including the risk of both civil and criminal liability. Questions of legal liability during a pandemic, however, predate this particular emergency.
Most states have protections in place for unpaid volunteers who provide care during a declared emergency. But non-volunteer clinicians, nurses, and other health care providers may be hesitant to conform to the crisis standard of care due to concerns about liability arising from injury or death. Unless proper and adequate legal protections are in place, they risk lawsuits, financial penalties and/or jail time, higher medical malpractice insurance rates, and damage to one’s reputation.
In the United States, states are generally responsible for the regulation of medical practice. Thus, there are no uniform federal rules or guidelines for how to allocate scarce resources in a public health emergency. As a result, there is enormous statewide variation regarding if, and how, legal liability protections might be provided to physicians, nurses, and others who provide medical care during a public health emergency. In other words, no uniform legal protection exists for the provision of care under disaster circumstances or pursuant to state resource allocation guidance. Rather, existing liability protections are a patchwork of federal and state law.
Prior to the COVID-19 pandemic, many states already had legal rules or guidance regarding malpractice liability protections for care provided during a public health emergency in place. Various laws provide different levels of protection: some laws provide civil liability immunity, some provide both civil and criminal immunity, and some states provide neither. Further, some liability protections are ensured legislatively, through general laws that protect clinicians from legal liability, absent willful acts or gross negligence, when they provide care pursuant to state directives or CSC. Other states have issued executive orders, or rules to be followed only during the pendency of the emergency.
On March 24, 2020, Health and Human Services Secretary Alexander Azar sent a letter to all state governors, stating, “[f]or 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.” In doing so, he recommended that states issue public guidance, “outlining the available liability protections during the COVID-19 emergency,” and calling on states to “quickly develop a list of the relevant state liability protections and waivers for health professionals during a national or state emergency.”
Likewise, the American Medical Association has recommended that states evaluate whether their “laws should be extended to fill gaps necessary to address the potential liability of physicians providing care in response to COVID-19 and/or care decisions made based on government or health care facility COVID-19 directives.”
What Protections Do States Provide for Physicians Providing Medical Care During COVID-19?
All 50 states have issued an emergency declaration due to the COVID-19 pandemic. However, there has been extreme variation in whether states have implemented or called for crisis standards of care and liability protections for physicians, and whether they have adopted legal protections for clinicians who provide care accordingly.
34 states offer some sort of civil liability protections for physicians who provide care pursuant to emergency standards. Of those, 16 states have promulgated new protections specifically in response to the COVID-19 pandemic. Importantly, all applicable laws that provide civil immunity for providing medical care during an emergency do so conditionally. In other words, if the physician has engaged in willful or intentional misconduct or gross negligence, the physician would still be subject to civil liability. Gross negligence is more than just an egregious form of negligence and can more appropriately be defined as willful misconduct or intentional wrongdoing.
12 of the 16 states that have promulgated new civil liability protections for following CSCs did so through executive orders (EOs), or a directive by the governor which carries the force of law. While executive orders have defined expiration dates (either the termination of the declaration of emergency or a predetermined number of days, as laid out in the executive order itself), in circumstances like the COVID-19 pandemic, they may be more desirable than broad-based laws because they can be tailored to the specific circumstances of the pandemic.
In fact, while existing state statutes provide civil liability protections to physicians who provide care during an emergency, they “do not clearly immunize decisions to withhold or withdraw ventilators” — a decision that clinicians and health care institutions may face during the COVID-19 pandemic.
EOs, in contrast, can be drafted to apply to the specific clinical conditions of the present pandemic, and therefore careful drafting can avoid that pitfall. However, executive orders are temporary measures with a specific end date. While a good first step, long-term protections may still be necessary through state legislation.
Some states, like Delaware, extended their civil immunity provisions, which are normally limited to public employees, to any person rendering assistance at the request of the state. One more state (Louisiana) has a law pending that would provide similar protections. In the first weeks of April, many professional health care organizations, including those in Florida, Oregon, and Pennsylvania (states that have yet to have liability protections promulgated), sent formal requests to the states’ governors, calling for liability protections.
Only three states (Maryland, New York, and New Jersey) provide protections to physicians from criminal liability that may result during the public health emergency. Before the COVID-19 pandemic, only Maryland had a preexisting law that provided criminal liability protections for physicians who follow a state’s crisis standard of care or provided care in a state of emergency.
Recommendations for Action
However, because CSCs depart significantly from standard non-emergency medical practice, states’ efforts at formalizing these plans can help eliminate concerns about physician reluctance to follow triage protocols and pandemic preparedness plans that could save the most lives.
Providing some degree of legal protection for following CSCs may encourage physicians to provide necessary medical care without increased fear of lawsuits. Thus, the declaration of a crisis standard of care, in conjunction with legal liability protections, may enable health care providers to more easily demonstrate that they met the requisite level of care in order to avoid legal liability.
*Author’s note: to streamline the research, I specifically evaluated immunity-conferring provisions for physician care during a declared state of emergency. However, a majority of these rules also apply to other health care providers who are responsible for patient care, including nurse practitioners, nurses, physician assistants, and others.
Valerie Gutmann Koch was the senior attorney and special consultant to the New York State Task Force on Life and the Law and is currently the director of law and ethics at the MacLean Center for Clinical Medical Ethics at the University of Chicago and faculty fellow at DePaul University College of Law.