March 2020 Newsletter

In this time of uncertainty and rapidly changing developments regarding the COVID-19 pandemic, we express our thanks and appreciation for those who continue to work at the front line of our health care systems. The HCLA and Protect Patients Now remain committed to keeping you updated on medical liability reform developments at the state and federal levels.

Good Samaritan language added to economic stimulus bill

Exemplifying the risk physicians face when working across state lines in a time of crisis is the current need for interstate health care resources to adequately respond to COVID-19 cases while ensuring medical liability coverage.

As a result, the Health Coalition on Liability and Access, its member organizations, and congressional cosponsors of the Good Samaritan Health Professionals Act (H.R. 6283/S. 1350) advocated for provisions of this legislation to be included in the Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748) signed into law by President Trump on March 27.

While the COVID-19 economic stimulus bill does not include the Good Samaritan language in full, it effectively applies the protections — for which the HCLA has long advocated — to volunteers serving existing or potential COVID-19 patients for the duration of this public health emergency.

HCLA Chair Mike Stinson explained the benefit to health care providers and their patients in an interview with Bloomberg Law.

“The liability exemption is ‘narrowly tailored,’ with protections only applying to providers doing uncompensated volunteer work in response to a disaster declaration or public health emergency. The protections wouldn’t apply in cases of gross negligence, willful or wanton misconduct, or if the provider was practicing while under the influence of drugs or alcohol,” Stinson said.

To read the Bloomberg Law article regarding how lawmakers are incorporating protections for physicians into the pandemic response bill, click here.

Legal implications of COVID-19

The American Tort Reform Association, together with partners from Shook, Hardy & Bacon L.L.P., hosted a webinar with a forward-looking view on how COVID-19 could impact medical liability litigation.

HCLA Chair and Vice President of Government Relations and Public Policy at the Medical Professional Liability (MPL) Association, Mike Stinson, joined as a panelist to share insights from the health care and liability insurance industry.

The webinar touched on current and anticipated litigation, implications for healthcare liability, and assessments of future litigation risks due to the pandemic.

The panel also discussed the threats healthcare providers faced in the wake of a rapidly changing situation and the types of claims that pose the greatest and most destabilizing liability threats.

“While we don’t have the imminent effects that are already affecting other industries, the potential for health care liability lawsuits is exponentially higher given that providers are being asked to perform under extenuating circumstances,” Stinson commented.

Stinson also commented on how the COVID-19 pandemic is exacerbating a longstanding physician shortage and resulting in physicians becoming sick themselves, worsening the shortage. In addition, the outbreak is leading to physicians having to practice outside their direct scope of medicine, affecting defensive medicine and potentially increasing liability threats, and impacting if and how physicians can practice across state lines.

The webinar slides can be accessed by clicking here, and a follow up on Legislative Responses to Tort Liability During a Crisis: Separating Legitimate Lawsuits from Inappropriate or Marginal Claims is scheduled for Thurs., April 2.

Additional COVID-19 News and Commentary

Several articles over the last several weeks touch on liability coverage and risks for retired physicians that actively return to treat COVID-19 patients, shielding New York practitioners from liability exposure, and how defensive medicine takes on a new twist in current times.

The Doctors Company offers no-cost liability coverage to retired physicians during pandemic
National Law Review: Risks of Dusting off the Scrubs
The impact of defensive medicine on hospital resources
Governor Cuomo issues executive order granting immunity for health care professionals during pandemic

State update: Legislative liability efforts across the U.S

The Health Coalition on Liability and Access has tracked state activities across the U.S., and compiled an update for members.

Since the beginning of the year, 10 states have seen liability bills introduced and/or considered in their state legislatures, with attempts to place measures on the ballot in 2020 as well.

Most notably, several states — including Georgia, Iowa, Louisiana, Missouri and West Virginia — are considering bills that enact collateral source reform and phantom damage reform. While varying from state to state, the language generally cited that recovery was limited to amounts actually paid to the healthcare provider by the health insurer.

Two states are considering divergent ballot initiatives.

In Oklahoma, an effort is underway to amend the state constitution to reinstitute reasonable limits on non-economic damages that were declared unconstitutional by the Oklahoma Supreme Court in 2019.

The California group is challenging MICRA through a ballot initiative begun as the Fairness for Injured Patients Act. Among other provisions, the initiative would eliminate the $250,000 cap on non-economic damages by adjusting the cap for inflation since its enactment; effectively raising the cap to $1.2 million.

To see a full list of pending liability legislation at the state level, click here.