Read about the various liability protections available for healthcare providers at the federal and state levels during COVID 19 pandemic.

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COVID 19-Related Liability
Protections for Healthcare Providers
Read about the various liability protections available for healthcare
providers at the federal and state levels during COVID 19 pandemic.
MOS Medical Record Reviews
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The new coronavirus COVID-19 pandemic has put the global population under an
unexpected lockdown, and created a public health emergency. In healthcare
settings, already bogged down by an increasing number of patients, accurate
documentation becomes crucial. Accurate medical records are vital to ensure
appropriate care for each patient. Moreover, they are also important in case
malpractice lawsuits arise. To streamline the medical review process in injury
litigation, attorneys utilize medical review services. The present pandemic is
forcing many healthcare facilities to change the provision of healthcare services
based on guidance provided by the CDC (Centers for Disease Control and
Prevention) and other federal, state and local government rules. However, there is
a concern regarding the potential liability of physicians and other healthcare
providers treating patients through this pandemic, providing high-quality patient
care while also staying compliant with these recommendations and guidelines. New
legislation is being introduced to protect healthcare workers from being exposed
to malpractice risk in the present scenario.
Federal Legislation
• The CARES (Coronavirus Aid, Relief and Economic Security) Act was
signed into law by the U.S president on March 27 this year. It provides
additional federal liability protections for volunteer healthcare professionals
during the COVID-19 emergency response. The law makes it clear that
healthcare professionals offering volunteer medical services during this
public health emergency shall not be liable for providing such services that
relate to the diagnosis, prevention or treatment of COVID-19 or the
evaluation or care of an actual or suspected COVID-19 patient. There are
limited exceptions that apply for elements such as criminal misconduct,
gross negligence, and providing care in an intoxicated state. These
protections preempt state and local laws that are inconsistent with the
CARES Act. State laws that provide greater liability protections are not
preempted.
• The PREP (Public Readiness and Emergency Preparedness) Act provides
broad immunity protections to healthcare providers who administer or use
countermeasures covered by declarations issued by the HHS Secretary on

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March 17, 2020. These countermeasures include antiviral medications, other
drugs, vaccines, biologics, diagnostics and/or devices to treat, diagnose,
cure, prevent, or mitigate COVID-19 or the transmission of SARS-CoV-2 or a
virus mutating from it.
• The VPA (Volunteer Protection Act of 1997) provides liability protections
to volunteers including physicians who are performing services for
government entities or non-profit organizations. The volunteer must have a
proper license, and must be certified and authorized by the appropriate
authorities as required by the law in the state where the harm occurred.
The protections apply to an uncompensated volunteer for acts of ordinary
negligence committed within the scope of his/her responsibilities. A
national emergency or public health emergencydeclaration is not required
for these protections to apply. Physician volunteers are not liable for
economic damages caused when they provide medical services within the
scope of their practice. Limited exceptions apply for gross negligence and
reckless misconduct. The protections offered preempt state and local laws
that are inconsistent with the VPA. State laws that offer greater liability
protections are not preempted. The HIPAA (Section 194) also extends
eligibility for Federal Tort Claims Act liability protections to volunteer
health professionals at qualifying free clinics; the clinic must sponsor the
physician by submitting an application to the Health Resources and Services
Administration.
State Legislation
Physicians providing care during an emergency, particularly volunteer
physicians,are provided liability protections in U.S. states.
• 50 states have Good Samaritan statutes that provide immunity to licensed
physicians acting in good faith who provide voluntary care at the scene of an
accident. Some states extend these protections to cover volunteer
physicians who provide care as part of an official response team in a public
health emergency, state of emergency, or other state declared disaster
proclamation issued by governors. Liability protections are provided for

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volunteer physicians providing care in a free clinic, non-profit hospital, or as
part of a government organization.
• Compacts or Uniform Laws passed by states include liability protections for
volunteers responding to a declared emergency. These protections are not
automatic and are limited in how they can be applied.
o An example is the EMAC (Emergency Management Assistance
Compact) which has been enacted by all 50 states. This provides
immunity to employees or officers from the rendering state to the
state requesting the support, in which these officers/employees are
considered agents of the requesting state for tort liability and
immunity purposes. If EMAC protections are to apply, one state must
make a request to another state (s) via the Compact and the request
must be formally accepted by the rendering state.
o The UEVHPA (Uniform Emergency Volunteer Health Practitioners
Act) provides immunity of civil liability to out-of-state licensed
health professionals for voluntary care provided in a declared
emergency. Limitations are there as to whom this Act applies,
including only out-of-state physicians who have registered in advance
or during an emergency. The UEVHPA has been enacted in17 states,
D.C AND U.S. VIRGINIslands since 2007 –AR, CO, GA, IL, IN, KY,LA, ME,
NV, NM, ND, OK, TN, TX, UT, WA, WV.
The pandemic we are facing now is unprecedented and of such huge proportions
that various measures are being taken at the federal and state levels to handle the
challenges effectively. The most important consideration is to safeguard frontline
healthcare providers who are risking their lives to save other lives. In keeping with
the current requirements and emergency situation, the Secretary of Health and
Human Services has encouraged Governors to formulate a list of liability
protections for in-state as well as out-of-state physicians, volunteer physicians,
relicensed or recently licensed medical professionals, services provided via
telehealth and so on.