Create COVID-19 Litigation Safe Harbor, AAFP Tells Congress

Academy Adds Voice to Broad Call for Liability Protection

June 10, 2020 04:30 pm News Staff

Primary care practices and physicians are among the parties Congress should indemnify against bad-faith legal action in the aftermath of COVID-19, the Academy and hundreds of other medical and professional organizations told lawmakers recently.

[risk ahead road sign]

The pandemic has left physicians vulnerable to "the threat of years of costly litigation," said a June 9 letter(5 page PDF) to congressional leaders that was signed by the Academy, the AMA and more than 150 other medical groups. The correspondence expressed strong support for "the targeted and limited liability protections that are in the bipartisan bill H.R. 7059, the Coronavirus Provider Protection Act."(www.congress.gov)  

Such protections would cover health care services "provided or withheld in situations that may be beyond the control of physicians and facilities (e.g., following government guidelines, directives, lack of resources) due to COVID-19," the letter said, and "extend to those who provide care in good faith during the COVID-19 public health emergency (plus a reasonable time, such as 60 days, after the emergency declaration ends), and not in situations of gross negligence or willful misconduct."

It was sent to House Speaker Nancy Pelosi, D-Calif.; House Minority Leader Kevin McCarthy, R-Calif.; Senate Majority Leader Mitch McConnell, R-Ky.; and Senate Minority Leader Charles Schumer, D-N.Y.

The pressures of the COVID-19 pandemic on physicians, wrote the AAFP and its co-signatories, have included the discontinuation of elective in-person visits, a shortage of personal protective equipment and inadequate viral testing capacity. In addition, many physicians have worked in different professional settings to help battle the pandemic.  

Story Highlights
  • The AAFP and more than 150 other medical organizations told congressional leaders in a June 9 letter that primary care practices need protection from bad-faith litigation related to COVID-19.
  • The letter echoed a call for liability protection that the AAFP and more than 200 other organizations sent Congress in an earlier letter.
  • The groups urged legislators to take a national approach to the issue rather than rely on state action.

"In these and other scenarios, physicians face the threat of costly and emotionally draining medical liability lawsuits due to circumstances that are beyond their control," the letter said. "These lawsuits may come months or even years after the current ordeal is over."

The Academy also signed a May 27 letter(7 page PDF) to Congress that warned of a post-pandemic legal battleground in which medical professionals and others would be "forced to defend against an onslaught of frivolous lawsuits."

To guard against such a wave, the AAFP and 230 co-signatories -- including the U.S. Chamber of Commerce, the AMA, America's Health Insurance Plans and the Blue Cross Blue Shield Association -- called for the swift enactment of "temporary and targeted liability-relief legislation related to the COVID-19 pandemic."

That letter asked Congress to extend such protections to

  • businesses, nonprofit organizations and educational institutions that work to follow applicable public health guidelines against COVID-19 exposure claims;
  • health care workers and facilities providing critical COVID-19-related care and services;
  • manufacturers, donors, distributors and users of vaccines, therapeutics and medical devices, as well as PPE and other critical supplies; and
  • public companies "targeted by unfair and opportunistic COVID-19-related securities lawsuits."

Liability shields have been touted(www.insurancejournal.com) as one way to encourage a return to pre-pandemic workplace and consumer norms -- including medical appointments not related to the virus. The past few months have delivered a stark reminder that independent primary care practices are small businesses(www.healthaffairs.org) -- and many are in danger of closing.  

"Past surveys have shown that many small businesses are one lawsuit away from closing for good," the May 27 letter warned.

It acknowledged that some states have already passed similar measures(www.claimsjournal.com) but urged a national, uniform approach to the issue; the patchwork of liability protections has begun to open fault lines(www.medpagetoday.com) between patient advocates and some care providers, particularly long-term care facilities.

As of last month, 47 medical malpractice or personal injury claims(www.rollcall.com) related to COVID-19 had been filed, but this relatively small number hasn't kept liability immunity from becoming a hot topic in the Senate ahead of possible further pandemic relief.

"These crucial protections should safeguard businesses, nonprofit organizations and educational institutions, as well as health care providers and facilities, from unfair lawsuits so that they can continue to contribute to a safe and effective recovery from this pandemic," the May 27 letter said.

Related AAFP News Coverage
Leader Voices Blog: Protecting Yourself From Threat of Malpractice Suits
(8/18/2017)

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