Category Archives: National

Health Workers Need Better COVID-19 Liability Protections

SOURCE: Law 360 This week, the U.S. crossed the grim threshold of having lost over 1,000 health care workers to COVID-19.[1] We owe them and those who serve in their place a massive debt of gratitude, awe and respect. Health care providers, from certified nursing assistants all the way up to administrative leaders, are facing challenges never before seen in our lifetime. Despite this, they walk into work every day knowing that the patients they are trying to save are infected with a deadly, highly contagious virus. The word “hero” comes to mind. Unsurprisingly, the pandemic has also exacted an emotional toll on our health care providers. A recent study published in The Lancet surveyed over 2,000 frontline nurses who were caring for COVID-19 patients in Wuhan, China. It showed that nurses treating coronavirus patients experienced high work burnout, a high level of fear, emotional exhaustion, anxiety and depression.[2] There’s no doubt that health care workers on our shores are suffering from these same mental health challenges as a result of the pandemic. It is our societal obligation to ensure that these aides, nurses and doctors — these heroes — are treated fairly in courts of law, with full recognition…

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September 2020 Newsletter

Oregon court errs in liability ruling The Oregon Supreme Court has ruled against the state’s limits on non-economic damages for personal injury cases, with the state’s wrongful death cap remaining, putting an attractive place to practice medicine in limbo. Initially enacted in 1987, the reasonable limit of $500,000 on non-economic damages was found unconstitutional in 1999, but reinstated when the court overruled itself in 2016, before again changing its mind this year. This roller coaster ride created significant uncertainty for patients and physicians alike. The Litigation Center of the American Medical Association and State Medical Societies, the Oregon Medical Association (OMA) and the American College of Obstetrics and Gynecologists (ACOG) filed an amicus brief with the court urging the limits be maintained. “While physicians continue to provide quality healthcare to their patients as they have done for centuries, the burdens on the profession continue to increase. No one does their best work while under duress and physicians are no exception. For all patients to be able to receive quality health care and for our medical system to continue functioning, there must be reasonable limits on liability,” the brief stated. Unfortunately, the court ruled in a different direction. In striking down…

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Schumer’s overblown attack on GOP proposal for medical malpractice lawsuits

SOURCE: The Washington Post Chris Hayes, MSNBC: “Is the liability protection language acceptable to you?” Senate Minority Leader Charles E. Schumer (D-N.Y.): “Not at all. It is so extreme. You heard — you said before what [Sen. Mitch] McConnell said, ‘We need things not extraneous, extraneous to covid.’ You know what’s in this bill? No medical malpractice suits till 2024, even if they’re not covid-related. What it says is, if a employer really puts his —” Hayes: “Wait a second. Wait a second. Wait a second. Really?” Schumer: “That’s in the bill. Yes. It’s in the bill. It’s amazing. This is a K Street, corporate-lawyer wish list.” Hayes, the MSNBC host interviewing Schumer, fell back in his chair and rolled his eyes upon hearing this answer. “Really?” he asked. No, not really. As Congress debates another round of coronavirus relief legislation, Senate Majority Leader Mitch McConnell (R-Ky.) says his “red line” will be shielding businesses, schools and health-care providers from lawsuits related to covid-19. The Safe to Work Act, which McConnell is sponsoring with Sen. John Cornyn (R-Tex.), does just that but in a highly technical manner. “As states gradually reopen their economies, front-line health-care workers, small businesses and schools…

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6 reasons why COVID-19 medical liability shield critics are wrong

SOURCE: AMA Opposition has emerged to a bipartisan bill before Congress that would provide targeted and limited liability protections to physicians and other health care professionals delivering care during the COVID-19 pandemic. Arguments being used against the legislation, however, are easily rebutted. The Coronavirus Provider Protection Act, H.R. 7059, was introduced in the House by Tennessee Republican Phil Roe, MD, and California Democrat Lou Correa and it has the support of nine co-sponsors (five Republican, four Democrats), the AMA and more than 130 national, state and medical specialty organizations. “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 back in June. “We commend Reps. Roe and Correa for recognizing that reasonable liability protections are in the best interest of our country as we continue to combat COVID-19 and begin to recover from this pandemic.” Physicians and other professionals remain vulnerable to the threat of unwarranted and unfair lawsuits as they continue heroic efforts to treat individuals afflicted with COVID-19 while also meeting the needs of other non-COVID-19 patients…

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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…

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July 2020 Newsletter

Senate stimulus bill introduced with COVID-19 liability protections A second economic stimulus bill introduced in the U.S. Senate this week (S. 4317, the “Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act” or the “SAFE TO WORK Act”) incorporates important liability protections for frontline medical providers and facilities. The issue has remained unresolved at the federal level since the start of the pandemic. This is of particular concern given the national nature of the crisis and the lack or inadequacy of sufficient state-level protections. Language in the bill creates an exclusive federal cause of action for injuries resulting from the treatment, diagnosis, or care of coronavirus, or care directly affected by the coronavirus. In addition, the bill preserves state laws which provide even greater levels of protection for our frontline healthcare professionals. The HCLA has also supported a bipartisan standalone bill, H.R. 7059, that addresses the legal vulnerabilities faced by healthcare providers as a result of the pandemic. Both H.R. 7059 and S. 4317 appropriately exclude liability protections in situations of gross negligence or willful misconduct. Speaking in support of the bill, Senate Majority Leader Mitch McConnell stated, “Nobody should have to face an epidemic…

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Kelly Introduces Essential Workforce Parity Act to Support Health Care Heroes During Coronavirus Pandemic

SOURCE: Skadden Washington, D.C. – U.S. Representative Mike Kelly (R-Pa.) yesterday introduced H.R. 7538, the Essential Workforce Parity Act. If enacted, this legislation would extend paid leave required by the Families First Coronavirus Relief Act (FFCRA) to health care workers and offer liability protections to hospitals and other medical providers from certain lawsuits during the COVID-19 emergency declaration. “Our doctors and nurses are on the front lines of the coronavirus pandemic risking their own health to treat the worst cases of COVID-19,” said Kelly. “The Essential Workforce Parity Act will guarantee that our health care heroes are treated fairly if they get sick while also ensuring their primary focus can be on helping patients, not fighting lawsuits.” The legislation has received support in whole or in part from two key organizations, including the Hospital and Healthsystem Association of Pennsylvania (HAP) and the Health Coalition on Liability Access (HCLA). Andy Carter, President and CEO of HAP, said this about the bill: “Pennsylvania hospitals’ first priority is the safety of health care workers and the patients they treat. This is especially true during the COVID-19 pandemic. During these difficult times—where the situation and guidance is constantly changing—we must allow health care workers…

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Liability Protections in Coronavirus Relief Legislation

SOURCE: Skadden Earlier today, Sen. John Cornyn, R-Texas, joined by Senate Majority Leader Mitch McConnell, R.-Ky., introduced the SAFE TO WORK Act, which would provide substantial and comprehensive liability protection from coronavirus-related claims for businesses, educational institutions, nonprofit organizations, health care providers and employers. The bill also expands the product liability protections already afforded by the Public Readiness and Emergency Preparedness (PREP) Act and includes several employment-related provisions. This is the long-awaited Senate leadership liability protection proposal that is expected to be considered by Congress over the next several weeks as part of the overall Phase 4 pandemic relief package. The following is a summary and brief analysis of the proposed legislation. See all our COVID-19 publications and webinars. Creation of Narrow, Exclusive Coronavirus-Related Exposure Cause of Action The bill creates an exclusive federal cause of action for claims alleging that a plaintiff contracted COVID-19 from an exposure to the virus caused by a defendant. That cause of action would limit liability to certain narrow circumstances and preempt all state laws that would otherwise apply to such lawsuits. Specifically, the legislation would require a plaintiff asserting a coronavirus exposure claim to prove by clear and convincing evidence that: (a) the…

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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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