May 2020 Newsletter


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  • May 29, 2020

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 sides of the aisle agree there should not be blanket immunity in cases of gross negligence, but reasonable protections related to COVID-19, Orrico said.

“In the context of the coronavirus, liability protections are an essential element for businesses and physicians and hospitals to get back up and running as an integral part reopening America,” Orrico added.

To read more about HCLA’s advocacy efforts on Capitol Hill, click here.

New York personal injury attorney expresses support for limited immunity

Support is growing for limited immunity for healthcare professionals and facilities, even from the most unlikely of groups — personal injury attorneys.

Writing in the New York Daily News in support of the need to protect those who have been on the front lines of the COVID-19 pandemic is Benedict Morelli, founder of the Morelli Law Firm and past president of the New York State Trial Lawyers Association.

Morelli expresses that in normal circumstances, he supports holding medical professionals to an even higher standard and would not align himself with those seeking to reform the liability system as a whole. But today, healthcare professionals are “enduring extraordinary limitations and challenges.”

“We need to recognize that the law simply should not apply to the current situation,” Morelli states. He supports New York’s approach to providing immunity to healthcare providers — an action that all states cannot or have not taken.

Highlighting the current circumstances, Morelli points out that, “None of this is reasonable. There is no standard to apply. These are unprecedented circumstances. In fact, doctors could be perceived as more negligent if they were unwilling to take extreme measures in these sorts of circumstances, rather than follow ‘standard procedure’ to no avail.”

As the crisis goes on, recognition of the heroic efforts of healthcare professionals may fade.

“While public opinion is overwhelmingly supportive of healthcare workers right now, make no mistake about it, the lawsuits will come,” Morelli warns.

Urging attorneys to do more for the healthcare providers treating COVID-19 patients “honors the spirit and intention of medical malpractice law, which seeks to protect people from negligence, not penalize doctors working tirelessly to save lives in the worst of circumstances,” he concludes.
Click here to read the personal injury attorney’s opinion piece in full.

Liability lawsuits piercing states’ attempts to shield pandemic responders

While a number of states have enacted protections for those at the front line of the COVID-19 pandemic, the strength of these protections is being tested as litigation ramps up.

The HCLA is tracking state actions, and those vary substantially in scope. Some only apply to patients diagnosed with COVID-19, while others include all care that may have been affected by the pandemic.

Now, healthcare facilities and providers are further highlighting how this is driving a need for a national solution. Not only would this “provide a level playing field,” according to the American Hospital Association, but it would also protect against decisions made, at the request of government authorities, to delay less urgent care.

Those who saw their conditions worsen in the meantime may later challenge decisions to postpone care, said Janis Orlowski, chief healthcare officer for the Association of American Medical Colleges.

“Because everyone pitched in and because everyone was doing what we thought was best at the time, we are looking for immunity for liability from unforeseen consequences of those decisions,” Dr. Orlowski said.

In California, advocates say the state’s protections don’t go far enough, given that they exclude physicians’ assistants and others who are likely to have rendered care. In Illinois and New Jersey, lawsuits have been filed against healthcare facilities as lawyers say they are confident in their ability to bring forth litigation regardless of state protections that are in place.

To read more about current efforts to bring forth litigation at the state level and the need for federal immunity, click here.