North Carolina health care providers coping with the ongoing COVID-19 pandemic received significant liability protections as part of new state law enacted Monday, May 4.

Section 3D.7, of NC Session Law 2020-3 titled “Health Care Liability Protection for Emergency or Disaster Treatment" provides that North Carolina health care providers are generally immune from civil liability for acts or omissions in the course of providing or arranging health care services during the period of the governor’s COVID-19 emergency declaration if:

1. The health care services are impacted by decisions or activities in response to the COVID-19 pandemic, and
2. The health care provider is providing services in good faith.

Broad Scope of Providers and Care Covered by Liability Protections

The liability protections apply to a broad range of health care facilities and agencies (including hospitals, ambulatory surgery centers, nursing homes, adult care homes, continuing care retirement communities, hospices, home care and certified home health agencies, facilities for mentally ill, developmentally disabled and more). Also protected are numerous types of licensed individual health care providers (including physicians, dentists, psychologists, dental hygienists, pharmacists, optometrists and dispensing opticians, nurses, podiatrists and more).

The liability protections apply to care provided anywhere in North Carolina during the current COVID-19 emergency declaration (Executive Order 116, effective March 10, 2020) until the end of 2020 (as long as a COVID-19 state of emergency is in effect). The health care services covered include not only those provided to known or suspected COVID-19 patients but also care provided to any other individual who presents or seeks care at or from a health care facility or provider during the emergency declaration.

Exception for Egregious Cases

Importantly, providers and facilities are not immune from liability for harm or damages resulting from “gross negligence, reckless misconduct, or intentional infliction of harm.” However, the legislation specifically provides that acts, omissions or decisions resulting from resource or staffing shortages do not amount to gross negligence, reckless misconduct or intentional infliction of harm.

Implications for Providers

What does this legislation mean for the average health care provider working through the pandemic? One thing is clear — it does not alter the standard of care (although juries might do so indirectly as they account for the stresses providers on the front lines are facing during this time). However, the legislation does excuse breaches of the standard of care where a provider can show that his or her decision-making or treatment was impacted by the COVID-19 crisis. Where possible, providers would benefit from documenting the pandemic’s impact on their operations and their reasonable efforts to respond, such as attempts to secure supplies and equipment, sustain needed staffing, stay abreast of CDC, local and state health department directives and other clinical guidance, train appropriate staff on COVID-19 protocol, isolate and prevent the spread of COVID-19 and fully inform patients of diagnosis and treatment options.

As a practical matter, the bill gives providers another tool for defending against malpractice lawsuit, and could discourage some potential plaintiffs from pursuing claims. However, once a claim is brought for care provided during the crisis, few if any providers will escape having to litigate it, because of the fact-dependent analysis required. Fact issues precluding early dismissal will likely include whether the care at issue was impacted by the pandemic and whether the conduct amounted to gross negligence or reckless misconduct.

It will be interesting to see how the courts (and juries, who may be swayed by current public sentiment viewing health care providers as heroes on the front lines of this crisis) define the scope of provider immunity in such an unprecedented time.