Some states are limiting the liability of healthcare organizations related to COVID-19. The immunity is limited.
- Documentation is critical.
- Claims are possible but may be easier to defend.
- Immunity will not apply to gross negligence.
Healthcare organizations facing potential liability related to COVID-19 may have some protection available on state and federal levels.
State protections vary, but one example is New York, which recently passed legislation that provides healthcare providers and facilities with immunity against potential lawsuits related to COVID-19, says Kara White, senior claims consultant with the Graham Company in Philadelphia.
Such legislation likely will apply to civil cases, in which patients or their families sue hospitals or other healthcare facilities that provided care for COVID-19, she says. Other states have enacted or are considering similar measures, but risk managers should confer with general counsel in their particular state to confirm how this type of legislation may apply, White suggests.
The state-specific immunity legislation passed in New York offers protection against both civil and criminal liability but does not apply to willful or intentional conduct or gross negligence. These types of allegations often are raised in professional liability claims. However, in New York, the statute makes clear these immunity exceptions do not apply to decisions resulting from a shortage of resources or staffing.
“As a result of the immunity granted to healthcare providers, I anticipate that any potential lawsuits brought against them as it relates to COVID-19 care will attempt to circumvent the legislation by alleging conduct that does not fall within the purview of the immunity,” she says.
While this type of legislation will not prevent anyone from filing a claim against a provider, it has been proposed or enacted in many states to assist organizations while they focus on other challenges, such as navigating extreme staffing and personal protective equipment (PPE) needs to handle critical patients.
“In this unprecedented situation, immunity is especially valuable because it gives providers the freedom to do what is best for patients while limiting fear of exposure to liability,” she says. “This immunity can be triggered as a potential defense from professional liability claims, questioning decisions that healthcare providers are making as they treat patients amid the pandemic.”
To best prepare and protect their organizations, White says risk managers should adhere to their established policies and procedures for executing tasks and keeping all parties safe. As long as the protocols implemented to handle the COVID-19 pandemic are applied consistently and risk managers continue to act in the best interest of patients or residents, this type of immunity legislation should help protect the organization, she says.
“Risk managers should also keep in mind the vital nature of documentation during this type of crisis. Even though the provider may have immunity for certain types of lawsuits, they may still be put in a position where they need to defend the decisions that were made under certain circumstances,” she says. “Risk managers can streamline this process by keeping a thorough risk management log outlining actions like transferring staff from one unit to another and the thought process behind doing so. It also is key to note any training given to ensure those staff members are prepared for their new role is also key in this situation.”
- Kara White, Senior Claims Consultant, Graham Company, Philadelphia. Email: firstname.lastname@example.org.