On April 5, 2021, the New York State Legislature sunsetted the special liability protections for healthcare providers serving during COVID-19. The governor first implemented these qualified immunities by executive order in March 2020, but the legislature then scaled them back in August 2020. While medical malpractice claims related to the COVID-19 pandemic likely won’t surface until 2022 or later, physicians are wondering now: Am I protected? What happens if I get sued for something related to COVID-19? What about the risks related to giving vaccines?
Fortunately, clinicians distributing vaccines are protected by the federal Public Readiness and Emergency Preparedness Act (PREP Act). For other care provided, it depends on whether the care occurred during: (1) the first phase of qualified immunity for physicians serving during the pandemic in New York (more robust), (2) the second phase of qualified immunity for physicians serving during the pandemic in New York (less robust, but still substantial), or (3) what we may hesitate to call “normal” times, immunity-wise.
The federal PREP Act of 2005 clearly protects clinicians providing vaccines. In fact, Congress created the PREP Act to encourage the rapid development and dissemination of vaccines during a crisis such as COVID-19. The PREP Act defines covered persons and countermeasures—“counter” meaning counter to the virus or crisis in question. As covered individuals distributing a covered countermeasure, clinicians will be immune from liability for any vaccine-related harms if there is not willful misconduct.
That said, the PREP Act’s applications go far beyond vaccines, and in jurisdictions without any state-based qualified immunity, may well provide broad protections for providers and institutions (covered persons) treating patients through various methods (covered countermeasures) for COVID-19. The courts are currently construing the purpose and scope of the PREP Act as it applies to areas beyond vaccines.
State Protections During COVID-19 in New York: The First Wave
From March 2020 to August 2020, the bar was gross negligence for a successful suit against a New York healthcare provider—assuming care was for COVID-19 or was affected by the provider’s response to COVID-19. Not just negligence, but gross negligence. The state set the bar high in recognition of the strain across the healthcare system at that time.
As patient volumes threatened to overwhelm institutions, the state had a mandate to expand hospital capacity. This expansion was achieved in part by inviting qualified individuals to help combat the virus. When the call was made, many healthcare providers from around the country answered, and those serving out of specialty, out of state, or coming out of retirement to serve as volunteers bolstered New York’s exhausted healthcare providers.
The governor’s March 2020 executive order, and the ensuing legislation that codified it, gave much-needed government support to frontline healthcare providers. Necessarily, during an emergency, the standard of care is different—it’s all hands on deck. The governor’s executive orders, together with the amendments to the Public Health Law, constituted in some sense a clinician-specific extension of the Good Samaritan Law to healthcare providers caring for patients under conditions many had never imagined.
Therefore, from March to August 2020, an unusually robust qualified liability immunity for care of both COVID-19 patients and non-COVID-19 patients protected New York providers. This was crucial because many patients found that their elective procedures or other treatments were delayed by a variety of pandemic-related factors.
Now, physicians have reasonable concerns for patients whose appointments were delayed for biopsies, blood pressure checks, and so on. As we all know, COVID-19 altered the entire system of care, and the legal protections for providers recognized that.
State Protections During COVID-19 in New York: The Second Wave
In August 2020, the New York State Legislature pulled back the qualified legal immunities that had been extended to healthcare providers by both the governor’s executive order and the enactment of New York Public Health Law Article 30-D. As of August 2020, the bar for a successful suit against a healthcare provider was still gross negligence—but only if the patient had COVID-19. Otherwise, for patients not treated for COVID-19 and seeking damages following treatment delays or other harms, the bar was negligence.
Protection Through the Long View
Healthcare providers are always trying to put out the fire, so to speak. It’s employers and insurers who are concerned about and have time to care about the particulars of these liability laws. Accordingly, at the pandemic’s beginning, insurers and employers were part of the effort to draw the governor’s attention to the need for liability protections, culminating in the executive order that gave the first breath of legal immunity.
Now, with the New York State Legislature sunsetting as of April 2021 the pandemic-specific qualified protections offered to healthcare providers, we look to the future. New York should move beyond extending protections during a crisis and pursue robust tort reform. The state needs to be more progressive in protecting physicians. Meanwhile, insurers should prepare resources for arguments against these protections from various angles—because these protections will be tested in the courts.
What to Do Now
As ever, documentation matters. At the best of times, a physician’s days are hectic, and memories are short. Even with challengers needing to clear a bar as high as negligence or gross negligence, some people will wish to make claims. A plaintiff’s attorney’s first move, when considering a case, may be to examine a patient’s record. Therefore, documentation is not only a protection once suits are brought—it protects against suits being brought in the first place.
Documenting daily efforts to combat COVID-19 with recommended infection control measures and the like is also a recommended practice. A quick daily note in an electronic calendar is helpful to establish good-faith effort. By the time claims from the pandemic surface, even those who lived it may have forgotten the details.
For now, lessons learned during the pandemic are informing medical practices’ plans for the near future. In a survey conducted by The Doctors Company, a significant majority of the 652 doctors who responded indicated they will maintain or increase their use of safety measures and telemedicine practices implemented during the COVID-19 pandemic. In sharing their views of what the practice of medicine will look like post-pandemic, 72 percent of respondents said they would increase their use of personal protective equipment (PPE), and 59 percent said they would increase their use of telehealth technology. Many also indicated that they would continue office safety measures such as limiting visitors or arranging their front-office areas for better infection control.
The Bottom Line
New York healthcare providers have been protected by qualified protections during the pandemic. However, these protections may not prevent medical malpractice claims. People sometimes bring suit based on poor outcomes, vs. poor care, so physicians are rightly concerned. Although adventurous plaintiff’s attorneys may look for loopholes, and may bring suits that challenge liability protections offered to healthcare providers in the heat of the pandemic, those suits most likely will not succeed.
About the Author
Peter A. Kolbert, JD, is senior vice president for claim and litigation services, Healthcare Risk Advisors (HRA), part of TDC Group, which also includes The Doctors Company. Mr. Kolbert manages and oversees the defense aspects of all professional and general liability claims covered by the company. Mr. Kolbert is also the enterprise COVID-19 coordinator responsible for overseeing and coordinating the COVID-19 claims across all TDC Group strategic business units. He works with HRA’s risk management department helping clients mitigate and prevent losses. Mr. Kolbert also works directly with clients on legal and educational projects to improve risk prevention.