August 2020 Newsletter

Just the facts: COVID-19 liability reforms

As the need to head off a COVID-19 medical liability crisis grows, the American Medical Association (AMA) highlights the Health Coalition on Liability and Access’ (HCLA’s) advocacy efforts in building support for the facts of the matter.

With COVID-19 cases building at a rate nearing 50,000 per day, risks of unwarranted lawsuits remain for physicians treating pandemic patients. This risk also threatens patient access to aspects of the health care system that may be disrupted as a result.

Pending in the House of Representatives is H.R. 7059, the Coronavirus Provider Protection Act. Similar protections are included in S. 4317, the SAFE TO WORK Act, under consideration for the Senate pandemic stimulus bill.

“Physicians and other health care professionals are putting themselves at risk every day while facing shortages of medical supplies and safety equipment, as well as changing directives and guidance from all levels of government,” then-AMA President Patrice A. Harris, MD, MA, said previously.

While opposition arguments exaggerate the reach and intent of the bill, the AMA highlights six arguments developed by the HCLA that spells out the reality of how pending legislation would address COVID-19 liability issues:

• Providing limited and targeted protection
• No immunity to health insurance companies
• Limited to physicians who perform procedures within the scope of their license
• Does not duplicate protections already provided by existing law
• Will not jeopardize worker safety
• Needed now – for future lawsuits

Although several states have passed laws or issued executive orders to protect physicians and other health care professionals, the HCLA has made clear that relying on state actions, which may contain multiple variations, makes “a comprehensive pandemic response unattainable,” because “a national emergency needs a national solution.”

To read the AMA analysis of the facts of H.R. 7059 and Senate legislation to address COVID-19 liability issues, click here.

False claims about COVID-19 liability abound

Opponents are stoking fears about how far medical liability protections under consideration by Congress would go.

In a television interview this month, Senate Minority Leader Charles Schumer (D-N.Y.) said that legislation introduced to date would result in “no medical malpractice lawsuits until 2024, even if they’re not covid-related.”

As Protect Patients Now, grassroots supporters know, the HCLA has continuously supported the idea that health care workers and facilities would be held liable in court for an act of gross negligence or intentional misconduct. The Senate proposal (S. 4317), championed by John Cornyn (R-Texas) and Mitch McConnell (R-Ky.), also would establish federal jurisdiction over all these cases, preempting similar lawsuits in state courts, which experts say have less stringent standards of proof in liability cases.

“As states gradually reopen their economies, front-line health-care workers, small businesses and schools face a second pandemic of frivolous lawsuits threatening to bankrupt them,” Cornyn said, echoing concerns from the U.S. Chamber of Commerce and business groups.

Rebutting Schumer’s clams was the Washington Post’s Fact Checker, confirming that the Senate proposals “specifically allows such suits.” To read the article in full, click here.

COVID-19 liability protection bill vetoed in Michigan

Further highlighting the need for a national solution to address COVID-19 liability risks, a bill that would have protected pandemic health care providers was vetoed by the Governor of Michigan.

The bill was developed after discussions made it clear that the pandemic presented unprecedented pressures and changing guidance for medical personnel.

In an opinion piece earlier this month, State Rep. Graham Filler, as leader of the House Judiciary Committee, highlighted how he “worked with experts on all sides of this issue to fine-tune this legislation and arrive at a balanced product that protects both the public receiving care and the health care providers.”

Given that executive orders that offered limited liability protections were rescinded July 13, the legislation would have established expanded liability protections retroactively from March 10, through January 1, 2021.

“By vetoing this measure, the governor is just making it harder for medical professionals to do their job,” State Senator Michael MacDonald said in a statement. “As this global pandemic continues, our doctors and nurses should be able to focus on providing the best care possible for their patients without worrying about possible lawsuits.

Click here to read more about Michigan’s attempt to address the risks to health care providers that result from open-ended pandemic liabilities.