State Civil Liability Protections for Physicians who Provide Care During Covid-19 Pandemic map.

How States are Protecting Health Care Providers from Legal Liability in the COVID-19 Pandemic

By Valerie Gutmann Koch

Since the onset of the COVID-19 pandemic, clinicians and policymakers alike have raised the alarm about potential legal liability for following crisis standards of care.

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.

Read More

A Professional In Vitro Fertilisation Laboratory Microscope Closeup - Image

Professor: The Law Has No Straight Answer for Our High-Tech Baby Boom

This is an excerpt of an article by Alaina Lancaster that originally appeared on Law.com. Read the full interview here. 

After thousands of dollars of in vitro fertilization treatments and nine months of pregnancy, a New York couple was forced to give up the twins they birthed. It turns out CHA Fertility Center, the Los Angeles clinic where the couple sought IVF treatment, mixed up the embryos of three patients, resulting in two of the couples having to give up children to their genetic parents. Now, those parents are suing.

Dov Fox, professor of law at the University of San Diego and the director of the school’s Center for Health Law Policy & Bioethics, said the law has not caught up with reproductive technology and victims of this type of medical malpractice aren’t left with many legal options. Yet, legal frameworks are out there, Fox said. Judges and lawmakers just might need to look outside the U.S.

Read the full interview here.

How Medicine Learns About the Law

By Nadia N. Sawicki

Many medical providers learn about the law the way kids learn about sex – whispers with friends, internet message boards, and media depictions of the most dramatic and unrealistic kind. And while both medical schools and junior high schools offer some type of formal education, it is quite limited, especially as compared to the information these students collect through other, less reputable, sources. As a result, many medical providers go into practice with a dark cloud over their heads – the “scared straight” model of legal education, if you will.

We’ve heard a lot about the practice of defensive medicine – ordering more tests and procedures than are medically necessary in an effort to protect oneself from potential liability. But fear of liability manifests itself in other, less dramatic, ways as well – for example, in overly-restrictive interpretations of HIPAA requirements that make it difficult for patients and their care providers to access needed medical information. In reality, however, much of the fear of liability experienced by medical professionals is unfounded.

Read More