Torkzadeh and Pensa agreed that it could be very difficult for plaintiffs to challenge this immunity and that attorneys would accept only the strongest cases of willful misconduct. “Plaintiffs’ attorneys will be very choosy in thinking about those cases,” said Pensa. She added, “Experienced lawyers will know that there’s a very high bar.”
However, there are limitations to what the declaration covers, noted Mollie Gelburd, JD, associate director of government affairs for the Medical Group Management Association. “This declaration of immunity relates to certain countermeasures, and those do have a limited scope,” she said. In other words, if the care does not relate to administering antiviral or other drugs, as well as vaccines or other diagnostics that are used to treat, diagnose, cure, prevent, or mitigate COVID-19, it’s not covered.
Additionally, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed by President Trump on March 27, offers temporary liability protection to volunteer physicians and healthcare professionals. Although it may sound broad, this protection applies only to volunteers who perform tasks related COVID-19 countermeasures.
There are other limitations of the CARES Act. “The protections will apply [only] if the services being furnished are within the scope of the provider’s license,” said Gelburd. This detail is relevant because many physicians are being asked to perform services outside the scope of their licenses, owing to shortages.
A number of state governors have enacted similar protections for healthcare workers in their jurisdictions. The National Governors Association’s website is tracking state declarations and other COVID-19 responses.
Additionally, the American Medical Association (AMA) is maintaining a list of federal and state liability protections that are in effect or underway. The AMA notes that such laws typically include exceptions for gross negligence or reckless or intentional misconduct.
Make Sure You Have Appropriate Liability Coverage
Regardless of COVID-19-related legislation, it’s essential for all clinicians to ensure they have appropriate malpractice liability insurance. Physicians in special circumstances, such as those coming out of retirement to aid in the crisis, operating outside the scope of their license, or using telemedicine for the first time, should be especially proactive in confirming their coverage, Pensa said.