Category Archives: National

June 2020 Newsletter

Federal legislation for pandemic providers, facilities gains momentum Late last month, federal legislation was introduced to address the increasing need for liability protections covering front line pandemic responders and the facilities in which they work. H.R. 7059, the Coronavirus Provider Protection Act, is a bipartisan bill introduced by Representatives Phil Roe, MD (R-TN) and Lou Correa (D-CA). The bill includes long-awaited protections addressing the liability exposure of healthcare providers who responded to the health crisis arising from the pandemic. “Plaintiff attorneys have already begun filing COVID-19-related lawsuits, and lawsuits, even those without merit, cost time and money, which clearly interferes with the country’s economic recovery. More importantly, such lawsuits distract health care providers from keeping laser-focused on caring for their patients,” said HCLA Vice-Chair Katie Orrico, in an article in the Northern California Record. their patients,” said HCLA Vice-Chair Katie Orrico, in an article in the Northern California Record. The bill is picking up further momentum as additional co-sponsors sign on and HCLA member organizations express their support. In a letter to Representatives Roe and Correa, HCLA member organizations highlighted that “…H.R. 7059 is a comprehensive, federal solution to a national crisis that cannot be solved by any one state….

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Iowa law now shields most businesses from COVID-19 lawsuits

SOURCE: De Moines Register Republicans in the Iowa House and Senate have passed legislation to largely shield businesses and health care providers from many coronavirus-related lawsuits, despite criticism from Democrats and advocates for workers and the elderly. The legislation limits who can file civil lawsuits against businesses for COVID-19 illnesses. It also raises the bar for what makes a business liable for coronavirus exposure. After the House passed the bill June 5, Senate Republicans pushed the legislation through late Wednesday on a 31-18 vote. Sen. Jim Carlin of Sioux City was the sole Republican to join Democrats in voting against it. “This is a timely, important and consequential bill,” said Sen. Zach Whiting, R-Spirit Lake, the bill’s floor manager. “If you’re an employer or a premises operator or health care professional, and you did your best to keep your people and your property safe based on the public health guidance and best practices at the time, you’re OK, and you should not have the threat of litigation hanging over your head.” The Iowa Capitol in Des Moines But Democrats, who are the minority in both chambers, said the bill goes too far to shield meatpacking plants and nursing homes that…

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Iowa law now shields most businesses from COVID-19 lawsuits

SOURCE: Radio Iowa Governor Kim Reynolds has signed the bill into law that gives businesses and health care providers new liability protections from COVID-related lawsuits. Senator Zach Whiting, a Republican from Spirit Lake, said it sends an important message. “If you did your best and took substantial steps to comply with ever-changing government guidelines, then you don’t have to worry about the threat of litigation clouding up your skies,” Whiting said during Senate debate. Republicans in the legislature supported the bill. Democrats opposed it. Senator Nate Boulton, a Democrat from Des Moines, said it will benefit businesses that failed to adequately protect their workers. “To the Iowans who get infected…we are going to lessen your rights,” Boulton said. Republicans named the legislation the “COVID-19 Response and Back-to-business Limited Liability Act.” People filing civil lawsuits will have to prove a business, church, or other organization was malicious or showed “reckless disregard” to the risk of COVID-19. It means most businesses, including nursing homes, cannot be sued for damages in civil court for COVID-19 deaths. The new law is written to retroactively take effect January 1st of this year. It also provides liability protection to businesses and individuals who made personal protective…

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New federal legislation seeks to shield physicians from COVID lawsuits

SOURCE: North California Record As the effort to provide liability protections amid the COVID-19 pandemic continues, a bill introduced in the U.S. House May 28 seeks to safeguard physicians and other health professionals working on the front lines. “During this global pandemic, physicians have been dedicated to preserving and protecting the health of the American public under extremely difficult and challenging circumstances, often at risk to themselves,” Katie Orrico, vice chair of the Health Coalition on Liability and Access, told the Northern California Record by email. The Coronavirus Provider Protection Act (H.R. 7059), sponsored by U.S. Reps. Phil Roe, M.D. (R-TN) and Lou Correa (D-CA), has been referred to the House Judiciary Committee. “Providers deserve to know that they won’t lose their livelihoods because they pitched in and did the right thing trying to care for patients during the pandemic,” Roe told the Record. “Our legislation is a targeted effort to provide protections to physicians whose care was altered as a result of state or local restrictions to prevent COVID-19. “Examples could include physicians who were forced to cancel or delay scheduled appointments, physicians who volunteered to help treat COVID-19 patients outside of their general scope of practice, or physicians…

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Protect health-care workers from COVID litigation: A plaintiff’s attorney says medical professionals should be shielded

SOURCE: New York Daily News As a plaintiff’s attorney for four decades and past president of the New York State Trial Lawyers Association, I support medical malpractice litigation. In fact, I believe medical professionals should be held to a higher standard than others since they hold peoples’ lives in their hands. But today, as we fight to stop COVID-19 from devastating our country, I applaud New York’s Emergency Disaster Treatment Protection Act, which provides civil and criminal immunity for health-care workers fighting the coronavirus. Gov. Cuomo should keep these protections in place as long as we are asking doctors to treat patients with COVID-19 while enduring extraordinary limitations and challenges. We need to recognize that the law simply should not apply to the current situation. The burden in medical malpractice cases is a “reasonable standard of care,” meaning that a doctor provided a level of care that another doctor would have provided under similar circumstances. Determining a reasonable standard at this moment is impossible. As more people across the country become infected and hospitalized, hospitals are facing a critical shortage of personal protective equipment, ventilators, and even health-care workers. Hospitals have had to go to extraordinary lengths to keep up…

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May 2020 Newsletter

HCLA presses Congress to pass COVID-19 liability protections As the need for federal action in support of pandemic responders builds, the Health Coalition on Liability and Access is taking an active role in pressing Capitol Hill on the importance of incorporating these protections in future COVID-19 legislation. Emphasizing the bipartisan support for passing a form of liability shield during the pandemic, HCLA Vice-Chair Katie Orrico spoke to the Northern California Record about work being done by the organization behind the scenes to ensure these protections are broad enough to be effective. “To the idea that something does in fact need to happen, there has been a bipartisan willingness to entertain that, so ultimately the question will come down to how broad are those protections,” said Orrico. Most recently, the group submitted a statement for the record to the Senate Committee on the Judiciary ahead of a hearing on the matter. Senate Republican leaders have been vocal about their approach. “[COVID-19 liability reforms] will extend significant new protections to the people who have been on the front lines of the response and those who will be on the front lines of the re-opening,” said Senate Majority Leader Mitch McConnell (R-KY). Both…

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HCLA presses Congress to pass COVID-19 liability protections

SOURCE: North California Record Congressional leaders on Capitol Hill last week heard testimony on expanding liability protections during the COVID-19 pandemic, a measure that many say is necessary to prepare for reopening the nation’s economy. While Republicans have been backing such protections, and Democrats have answered with a new $3 trillion stimulus bill, behind the scenes there looks to be bipartisan support for passing some form of liability shield during the pandemic, Katie Orrico, vice chair of the Health Coalition on Liability and Access (HCLA), told the Northern California Record. “To the idea that something does in fact need to happen, there has been a bipartisan willingness to entertain that, so ultimately the question will come down to how broad are those protections,” said Orrico, who is also director of the Washington office of the American Association of Neurological Surgeons (AANS) / Congress of Neurological Surgeons (CNS). “It’s not in the HEROES bill, that is a placeholder bill, and the real bill is being negotiated behind the scenes, and so we’ll see how this sorts out, but this is a top of the line issue that is in active discussions and hopefully won’t get too politicized,” Orrico said. Shortly after…

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April 2020 Newsletter

The HCLA and Protect Patients Now remain committed to supporting our front line health care providers and keeping you updated on COVID-19 related medical liability reform developments at the state and federal levels. Visit our dedicated COVID-19 resource page for regularly updated materials and updates. Stopping liability lawsuits from going viral As confirmed COVID-19 cases in the U.S. hover around one million, a new problem may be spreading — medical liability lawsuits. Personal injury attorneys are taking advantage of a captive audience, advertising to the increasing number of homebound Americans. According to an editorial in the Wall Street Journal, television advertising has focused on recruiting cases involving family members of those who became sick or died from COVID-19, in particular, while in nursing homes. With hospitals and providers managing a surge in patients, “Health-care providers have to make treatment decisions against a disease we still know too little about, and they shouldn’t be sued unless they are grossly negligent,” the editorial states. Highlighting the work of Governors in New York, Michigan, and Illinois to protect their states’ providers from lawsuits, the editorial encourages other governors and the federal government to do the same. “Congress last month provided liability protection for…

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HHS Issues Advisory Opinion on PREP Act Declaration Immunity

SOURCE: JD Supra On April 14, 2020, the General Counsel for the Department of Health & Human Services (HHS) issued an Advisory Opinion (the Opinion) concerning the Public Readiness and Emergency Preparedness Act (the PREP Act) and the March 10, 2020 Declaration issued pursuant to the PREP Act to address questions about the scope of immunity conferred under the two during the COVID-19 pandemic. The Opinion is in response to numerous requests for advisory opinions on whether various activities qualify for PREP Act immunity. While the Opinion is not a final agency action or order nor binding as a matter of law, it serves to illuminate the current views of the General Counsel. A copy of the Opinion can be found here. As background, on March 10, 2020, Alex M. Azar II, Secretary of HHS, issued a Declaration pursuant to section 319F-3 of the Public Health Service Act (42 U.S.C. 247d-6d), to provide immunity for “Covered Persons” engaging in “Recommended Activities” involving “Covered Countermeasures” against COVID-19 (the Declaration). More information about this Declaration, and the immunity conferred pursuant to the PREP Act can be found here. This omnibus Opinion provides guidance on who qualifies as a “Covered Person,” whether or…

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Make this simple change to free up hospital beds now

SOURCE: The New York Times There is something we can do immediately that will dramatically help hospitals free up beds and medical equipment to help those suffering from covid-19. This proposal will save lives the minute that states and other authorities adopt it. We are in urgent need of emergency laws, or executive orders, in every state that temporarily relax the legal standard of medical malpractice. This is not an end-run to bring about tort reform. It is an emergency step, necessary in a national emergency, to save lives. Here’s why: Normally, when emergency physicians admit a patient who has a small but non-trivial chance of having a serious medical problem that further testing and observation may reveal, we do not hesitate to do so. Our rationale is twofold. First, the risk of the patient catching a hospital-acquired infection is lower than the benefit of detecting a more insidious medical problem. Second, the legal exposure is too high to do otherwise. Even if we are wrong only 1 out of every 100 or 1,000 times, the legal liability of one mistake can ruin careers and bankrupt medical practices. So, we admit. But coronavirus has changed that calculation. If a physician…

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