Healthcare Provider Immunity and COVID-19
Learn about the state and federal efforts to allow you to provide life-saving aid without fear of civil or criminal liability during the COVID-19 pandemic.
Given the uniqueness of the coronavirus, as well as shortages of medical resources, many healthcare providers fear lawsuits or criminal charges for patient injuries or death that occurs while provider renders care due to COVID-19.
The federal government has passed no legislation on this issue to date.
However, many states have passed laws that immunize healthcare practitioners from COVID-related negligent care but maintain liability for gross negligence, recklessness, or intent, or care not rendered in good faith.  This means that the provider will only be found liable if a patient is harmed by the provider purposely or through gross negligence
Some states have also granted immunity from malpractice lawsuits for medical care rendered to any person during the COVID-19 pandemic, regardless of whether the services were related to the coronavirus. Additionally, most states have immunized healthcare facilities in addition to providers, and the immunity provisions in many states have vague or open-ended expiration.
Illinois was one of the first states to address this issue through the governor’s executive order, which grants all healthcare facilities and healthcare providers immunity from civil liability when providing services to help with the pandemic. The edict is broad and appears to cover all healthcare services, including telehealth appointments and not just emergency services. However, immunity does not apply to injuries caused by gross negligence or willful misconduct.
New York’s Emergency Disaster Treatment Protection Act granted healthcare practitioners immunity from civil and criminal liability.  Immunity applies to health care services that are related to the prevention, assessment, treatment, and care of COVID-19. Immunity does not apply to injuries caused by gross negligence or willful misconduct. Importantly, it also does not apply to acts taken to prevent coronavirus. The law provides immunity for acts through the expiration of the initial emergency declaration.
 Emergency Disaster Treatment Protection Act § 3081.
The Connecticut governor issued two executive orders that make healthcare professionals (including a wide range of practitioners from nursing home workers to doctors in private practice) immune from civil liability for activities “in support of the State’s COVID-19 response.” Immunity is only available for acts that occurred after March 10, 2020. Immunity does not apply to injuries caused by gross negligence or willful misconduct.
The Wisconsin legislature enacted Act 185, which immunizes healthcare providers from civil liability for actions taken during the state of emergency. The immunity applies to all services provided or not provided in good faith or are consistent with governmental guidance.
When Michigan’s governor declared a state of disaster, certain healthcare workers automatically became immune from civil liability for actions taken during a state of emergency under Michigan’s Emergency Management Act of 1973. The act applies to individuals licensed to practice medicine or osteopathic medicine, or a licensed hospital, who renders services during a state of disaster as declared by the state. Immunity does not apply to injuries caused by gross negligence or willful misconduct.
Current Efforts at the Federal Level
The Senate Looks at Immunity Legislation
As part of the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act, Senate Republicans introduced S. 4317, the SAFE TO WORK Act, which incorporates liability protections for frontline healthcare providers and facilities. If enacted, the bill would create an exclusively federal cause of action for injuries or death resulting from the treatment, diagnosis, or care related to COVID-19. At the same time, it would preserve state laws that provide greater levels of protection for healthcare providers during the pandemic.
Importantly, the SAFE TO WORK Act would limit liability for providers and facilities to cases where a plaintiff proves by the heightened “clear-and-convincing” evidentiary standard that the healthcare provider or facility acted with gross negligence or willful misconduct and failed to make reasonable efforts to comply with public health requirements. Significant to the healthcare context, the proposed law provides that acts or omissions resulting from a resource or staffing shortage would not constitute gross negligence or willful misconduct by a healthcare provider.
The SAFE TO WORK Act has been referred to the Senate Committee on the Judiciary and currently awaits a hearing. However, given the deep divisions in Congress regarding what provisions to include in the next COVID-19 relief package, it is unclear if and when liability protections for healthcare workers will be enacted into law. Senate Majority Leader Mitch McConnell has adamantly insisted that any new COVID relief legislation must contain significant liability protections.
The House Looks at Immunity Legislation
Two bills have also been introduced in the House of Representatives that would similarly provide liability for healthcare workers responding to the COVID-19 pandemic. On May 28, 2020, Representatives Phil Roe, MD (R-TN) and Lou Correa (D-CA) introduced H.R. 7059, the Coronavirus Provider Protection Act, a bipartisan bill to protect healthcare providers in situations directly related to COVID-19 where services were provided within the provider’s scope of licensure and were rendered in good faith. Although a broad coalition of medical associations supports the bill, an equally broad coalition of union and consumer groups oppose it. The bill is unlikely to gain much traction in the democratically controlled House of Representatives.
Lastly, on July 9, 2020, Representative Mike Kelly (R-PA) introduced H.R. 7538, the Essential Workforce Parity Act. In addition to extending paid leave required by the Families First Coronavirus Relief Act (FFCRA) to healthcare providers, the act would also offer liability protections to hospitals and medical providers from certain lawsuits during the COVID-19 emergency declaration. Like with H.R. 7059, the Essential Workforce Parity Act faces an uphill battle in the House of Representatives, and it is unclear if and when the bill will even receive a hearing.
Protecting Your Practice from Liability Amid the Uncertainty
Since the beginning of the COVID-19 pandemic, healthcare providers and facilities have put themselves at risk despite workforce shortages, inadequate safety supplies, and ever-changing guidance from federal, state, and local government officials. While numerous states have enacted liability protections for healthcare providers who render COVID-19 related services, federal action is needed to address a nationwide problem, rather than a state-by-state patchwork approach.
Until the federal government passes uniform legislation, COVID-19 civil and criminal immunity will vary across the country. As of now, the key to avoiding liability is to make “reasonable” and “good faith” efforts to comply with any applicable state law, as well as government standards and guidance in effect at any given time.
If you are uncertain as to what your state requires to avoid liability for rendering COVID-19 healthcare services, reach out to the experienced lawyers at Jackson LLP Healthcare Lawyers for additional liability guidance.
 State Covid-19 Health Care Immunity Laws, Center for Justice & Democracy
 Emergency Disaster Treatment Protection Act § 3081.
The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.