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 health-care volunteers but should extend them to all providers,” it urges.

The editorial warned of further legal issues, against employers who resume business as the pandemic turns a corner.

“If Congress wants America to recover with any speed from this pandemic recession, we can’t have a lawsuit epidemic too. Employers operating in good faith need a safe harbor.”

To read the Wall Street Journal editorial, click here.

The push for pandemic responder immunity

The HCLA is pushing for COVID-19 pandemic-related immunity at the federal level, and the Protect Patients Now network of grassroots advocates has an opportunity to have their voice heard.

Earlier this month, the HCLA sent a letter to congressional leaders, highlighting the need for “further action providing [health care professionals] relief from the threat of lawsuits…” as they are “putting themselves at risk each day while facing workforce shortages, inadequate safety supplies, and insufficient information or changing guidance from federal, state, and local government officials.”

The letter asked that Congress follow the lead of states that had issued executive orders and/or passed liability legislation. These actions would grant health care professionals and facilities immunity from civil liability for any injury or death alleged to have been sustained because of any acts or omissions undertaken in good faith while providing health care services in support of the Nation’s COVID-19 response.

Patients and physicians can weigh in with their support by contacting Congress. The Protect Patients Now Action Center offers a seamless advocacy platform with suggested e-mail templates for U.S. Senators and Representatives based on a patient or physician’s location.

To join the hundreds of PPN grassroots advocates who have already sent messages to Congress to support health care providers and facilities during the COVID-19 pandemic, click here.

HHS issues interpretation on PREP Act product liability

As requests for clarification on product liability immunity continue from health care providers and facilities, the Department of Health and Human Services (HHS) issued its interpretation of the Public Readiness and Emergency Preparedness (PREP) Act and its applicability in the COVID-19 pandemic.

Under the PREP Act, manufacturers, distributors, and health care providers acting to address the COVID-19 crisis can be protected from product liability suits.

In its issued opinion, HHS reinforced that a “reasonable belief” standard confers immunity even if all the requirements are not met.

“[A]n entity or individual who complies with all other requirements of the PREP Act and the conditions of the Secretary’s declaration will not lose PREP Act immunity — even if the medical product at issue is not a covered countermeasure — if that entity or individual reasonably could have believed that the product was a covered countermeasure,” the opinion stated.

The advisory opinion includes several hypothetical examples for guidance. One included:

If a covered person purchases 500,000 tests or respirators “that appear to be authorized under an EUA” and has taken reasonable steps to substantiate the authenticity of the products, but it turns out that the products are in fact counterfeit, PREP Act immunity still applies for losses arising out of the use of the counterfeit product.

While the HHS opinion broadly offers protection on product liability issues, it confirms that it is the responsibility of the individual or facility seeking PREP Act immunity to determine whether they or their countermeasures are covered.

To read more about the HHS opinion on the PREP Act, click here.

HCLA announces 2020 Board of Directors, Executive Officers

Following the annual meeting, the HCLA announced its 2020 Board of Directors and Executive Committee members.
As Sustaining Members of the HCLA, Board seats were granted to the American Association of Neurological Surgeons/Congress of Neurological Surgeons, the American Association of Orthopaedic Surgeons, the American Medical Association, the Cooperative of American Physicians, MLMIC Insurance, the Medical Professional Liability (MPL) Association, NORCAL Group, and Physicians Insurance – A Mutual Company.

The American College of Surgeons and American Hospital Association were confirmed as Contributing Member Representatives, and the American Osteopathic Association, as a Regular Member Representative.

The Board of Directors elected the following representatives to serve as Officers and Executive Committee Members for the year:

  • Mike Stinson, MPL Association – Chair
  • Katie Orrico, American Association of Neurological Surgeons – Vice-chair
  • Catherine Hayes, American Association of Orthopaedic Surgeons – Secretary
  • George Cox, American Medical Association – At-large Executive Committee Member

“Given the particularly heightened awareness of the need for medical liability protection in the wake of a global pandemic, I am thankful for the opportunity to continue to advance the HCLA’s agenda by reducing medical lawsuit abuse through comprehensive action at the federal level,” said HCLA Chair Mike Stinson.

The HCLA will also be working through its focus committees on specific initiatives. Elizabeth Healy of The Doctors Company will serve as Legislative Committee chair, Stuart Weinstein, M.D. will continue as the spokesperson and lead the Public Affairs Committee, and Simit Pandya of the MPL Association will lead the group’s Grassroots Committee.