Reason for Optimism Regarding COVID-Related Lawsuits Against Practitioners in New York

by PETER A. KOLBERT, HRA SVP Claims and Litigation Management 

As physicians know better than anyone, COVID-19 has upended, restructured, and forced change and anxiety in every aspect of healthcare, from the spacing of chairs in the waiting room to the barring of next-of-kin at the hospital for major surgeries and end-of-life prognoses. In this surreal medical environment of the past year, it’s no surprise that another anxiety over a new “fear of the unknown” for medical professionals is the specter of malpractice suits driven by care administered for, or even during, COVID-19.

Fortunately, the common-sense notion that clinicians should receive additional legal protections when doing their good-faith best to deal with a public health emergency is a truism reflected in the law — from federal legislation, to New York legislative action, to Executive Orders from the governor.

Our view at HRA is that new, existing, and augmented government legal actions put in place to protect practitioners during this emergency provide a robust, multi-layered “ring of defenses” than can, and should, put physicians in the state of New York more at ease.

Let’s take a look at what we see as the three key concentric rings of statutory defense that help protect physicians from COVID-related lawsuits:

1. The federal PREP Act (2005)

We begin here because this federal law of 15 years ago (the “Public Readiness and Emergency Preparedness act”) establishes the broad and clear foundation of legal protection for healthcare practitioners in the event of a national public health emergency, whether man-made (e.g. a terrorist bio-attack), or naturally occurring (such as our current COVID-19 pandemic).

The PREP Act, signed by then-president George W. Bush, was one of many initiatives arising from the post-9/11 desire to remove impediments to the effective protection of, and response for, U.S. citizens in case of national emergency.

While intended fundamentally to protect vaccine manufacturers against liability in quickly developing and manufacturing vaccines in a declared public emergency, that protection extends to doctors and other caregivers and entities involved with deploying such measures to combat and mitigate the public health threat.

2. Executive Order series 202 from the Governor of New York (beginning March, 2020)

These Executive Orders by the governor are perhaps the most well-known and oft-cited legal instruments deployed in response to the COVID-19 pandemic in New York. It was March 7th with Executive Order 202 that the governor declared a state of emergency in New York; subsequently, he has issued over 100 addenda to the Order.

Of particular note here is Executive Order 202.10, issued on March 23, 2020, which states in part:

“… to the extent necessary to provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.”

We find it clear that Executive Order 202.10 demonstrated the governor’s intent to eliminate all obstacles to the delivery of health care, to the provision of supplies and medical treatment necessary, throughout the healthcare system, to ensure adequate capacity for all citizens of the state of New York.

Note, however, that although the immunity standard is comprehensive, it does not provide immunity from being sued, despite the fact that there is immunity from liability.

3. New York State Sections 3080-3082 of the EDPTA (April, 2020)

These New York state legislative actions dovetail with the governor’s Executive Orders from the prior month.

Drilling down from the top, these provisions are contained in the New York state budget enacted on April 6, 2020, in a new Article 30-B (entitled the “Emergency Disaster Treatment Protection Act,” or EDPTA). The two keys for our discussion here are:

• Section 3080 (“Declaration of purpose”) of Article 30-B, which specifies in part:

“…It is the purpose of this Article to promote public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated from the public health emergency.”

• Section 3082 (“Limitation of liability”) of Article 30-B, which specifies in part:

“…Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of providing health care services, if:

(a) the health care facility or health care professional is providing health care services in accordance with applicable law, or where appropriate pursuant to a COVID-19 emergency rule;

(b) the act or omission occurs in the course of providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and

(c) the health care facility or health care professional is providing health care services in good faith.”

Though the above is rather granular for a blog post, it serves to exemplify the clarity and strength of government protections now on the law books in the state of New York – and supports a view of optimism for physicians unsure of their legal exposure arising from the COVID-19 emergency.

Furthermore, there are myriad other obstacles to emergency response by physicians now addressed among various applicable laws – including softening of demands on Standard of Care, Credentialing, Abandonment, and other issues often in play in a non-pandemic environment.

Conclusion

As you can see, the “big picture” is that physicians have a robust and comprehensive set of statutory defenses and immunities provided by governmental agencies relating to the COVID-19 public health emergency. Where a lot of this leads is to an overall environment where the burden is largely raised to Gross Negligence, the severest form of negligence in a medical civil claim. In any case, careful and thorough documentation of the care provided can help greatly if a suit is brought.

Of course, the final piece of the puzzle for peace-of-mind is to have experienced, expert, passionate advocacy and counsel from your professional liability carrier’s attorneys. It’s a responsibility we take very seriously – and successfully, for over three decades – at HRA.

Peter A. Kolbert, JD, is HRA’s senior vice president for claim and litigation services, which 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 (HRA’s parent company) 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.

Mr. Kolbert joined the company in 2010 after gaining more than 20 years’ experience defending medical malpractice cases in state and federal courts involving a wide array of medical specialties. In concert with his practice, Mr. Kolbert has lectured and published articles on medical malpractice–related topics ranging from informed consent to immunities applicable to COVID-19–related litigation. 

Prior to going into private practice, Mr. Kolbert was an assistant corporation counsel representing New York City and its many agencies including the New York Health and Hospitals Corporation, the NYPD, the NYFD, and the New York Board of Education in trying cases to verdict throughout New York City.

About HRA (Healthcare Risk Advisors)

Healthcare Risk Advisors (HRA) partners with large medical practices and healthcare organizations to identify and solve their unique self-insurance, risk transfer, and risk management needs. We do this through a platform of innovation, deep business intelligence, knowledge, and experience.

Claim and Litigation Services and Risk Management Services work together with hospital chairs and risk managers to identify trends and opportunities. We have over 30 years of experience working with healthcare institutions to reduce liability risk. HRA is currently serving 18 hospitals, and we have the expertise to reduce liability exposure and improve patient safety that healthcare organizations will not find elsewhere. HRA underwrites and issues a broad spectrum of professional coverages through its HIC (Hospitals Insurance Company) entity.

HRA is member of The TDC Group of companies, the nation’s largest physician-owned provider of insurance, risk management, and healthcare practice improvement solutions.