Emergency physicians (EPs) serving as volunteers during the pandemic have broad liability protections under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
“These are not absolute protections,” notes Leslie Isaacman Yohey, JD, MBA, an attorney in the Memphis office of Baker Donelson. Generally, gross negligence is never excluded from liability. “Simply because these liability protections exist does not mean that providers won’t get sued,” Yohey adds.
She recommends volunteer emergency department (ED) providers verify their malpractice insurance covers voluntary service. Hospitals should check that volunteer providers are covered under the hospital’s malpractice insurance. Additionally, leaders should look to relevant state law to determine the extent of liability protections related to volunteers.
“In addition, protections may not extend to care provided to non-coronavirus patients, even though such care may be directly impacted by the pandemic,” Yohey offers.
The issue of liability for volunteer physicians during an emergency is “widely misunderstood, with many unfounded concerns about potential liability,” says Mark A. Rothstein, JD, director of the Institute for Bioethics, Health Policy, and Law at the University of Louisville. “Anecdotally, I know there is concern about liability. Those extremely concerned don’t volunteer.”
Hospital administrators also are worried. “Hospitals also may have some concerns, but that is why they have malpractice insurance,” Rothstein notes. In addition to protections under the CARES Act, several federal and state laws grant immunity from malpractice liability to volunteer physicians in an emergency. One example is the Uniform Emergency Volunteer Health Practitioners Act. This protects volunteer health practitioners from damage liability, except in those cases of willful, wanton, grossly negligent, reckless, or criminal conduct, or an intentional tort.
“One reason these laws were enacted is the erroneous belief that there have been many lawsuits filed against healthcare providers for harms caused during a public health emergency,” Rothstein observes. “In fact, there have been zero such lawsuits.”
If a malpractice case were brought, a different standard of care could apply. “Many physicians are concerned that they would be held to the regular standard of care, which they could not meet because of the extraordinary conditions,” Rothstein says.
However, the law in every state is clear on this point: A healthcare provider’s duty is to do what is expected of a reasonably competent practitioner acting in the same or similar circumstances. “Thus, physicians rendering care without electricity, sterile supplies, or medicine are not held to a higher standard of care,” Rothstein says.