Public health emergencies give rise to exceptional powers that can be exercised by federal and state officials. One of these powers is the ability to shield health care workers from liability in certain limited circumstances.
To be clear, there is currently no general liability protection available to non-volunteer health care workers treating patients during the COVID-19 (coronavirus) pandemic. Traditional negligence standards apply absent an exception discussed below. Reasonable care by a doctor, for example, is care that meets an accepted standard of care that a doctor who is in a similar practice in a similar community would use or follow under similar circumstances.
But federal and state officials have the power to provide liability protection to health care workers in certain situations. Such authority may be necessary to exercise when health care workers are asked to jump into the fray and work in perhaps less than ideal (or sanitary) conditions, or conditions that might not be up to Joint Commission standards. Instead of seeing patients in a hospital, patient care might be provided in a high school gym or an Army tent. And instead of practicing evidence-based medicine, providers may be asked to try new medicine or follow new procedures.
In order to overcome concerns regarding personal liability in a public health crisis, government has the ability to provide liability protection for health care workers in certain situations.
The Public Readiness and Emergency Preparedness (PREP) Act
The Public Readiness and Emergency Preparedness (PREP) Act1 gives the federal government authority to protect certain “Qualified Persons” (e.g. health care workers) from liability. The PREP Act is activated pursuant to a “PREP Act Declaration” issued by the Secretary of Health and Human Services (HHS). It provides immunity from tort liability (except willful misconduct) for claims of loss resulting from the administration or use of a countermeasure to entities and individuals involved in the development, manufacture, testing, distribution, administration and use of such countermeasures.
HHS Secretary Alex Azar issued a PREP Act Declaration on March 10, 2020, made retroactively effective February 4, 2020. It provides liability immunity for activities related to medical countermeasures against the coronavirus. To determine whether immunity protection applies, the answer to all of the following questions must be “yes”:
- Are you a Qualified Person? A Qualified Person is defined to include individuals who prescribe, administer, deliver, distribute or dispense a covered countermeasure, and their officials, agents, employees, contractors and volunteers.
- Did you engage in a Recommended Activity? A Recommended Activity includes the “manufacture, testing, development, distribution, administration, and use” of a Covered Countermeasure.
- Did your conduct involve a Covered Countermeasure? Covered Countermeasures include “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.”
- Did the Qualified Person act pursuant to an agreement or as directed? Liability immunity is afforded in two situations: First, if the Qualified Person acted pursuant to a federal contract, cooperative agreement, memorandum of understanding or other federal agreement, or second, if the Qualified Person acted in accordance with the public health and medical response of the public agency or its delegate that has legal responsibility and authority for responding to an incident. So, for example, absent a contractual agreement with the federal government, a Qualified Person can receive liability immunity for acting as directed by the state Department of Health or other applicable government agency.
Note that the liability protection afforded by the PREP Act does not mean that an injured patient has no remedy. A patient suffering serious physical injuries or death directly caused by the administration or use of Covered Countermeasures can make a claim, within one year of such injury, to the Countermeasures Injury Compensation Program, a special recovery fund established by Congress.
State Emergency Powers
As with the federal government, state officials also have a number of extraordinary powers to exercise in the case of a peacetime emergency.
In New York, for example, Governor Cuomo recently issued Executive Order No. 202.10, which grants immunity from civil liability to “all physicians, physician assistants, special assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses” for any alleged injury or death caused by an act or omission by one of the aforementioned medical professionals “in the course of providing medical services in support of the State’s response to the COVID-19 outbreak,” unless such injury or death was caused by that medical professional’s gross negligence. This grant of immunity runs from March 23, 2020, through April 22, 2020.
The protection afforded by the New York Executive Order is broader than the PREP Act in that it does not require the causal connection with a “Covered Countermeasure.” And like the PREP Act, it provides immunity to health care workers for simple negligence. A notable distinction, however, is that while the PREP Act’s provision of immunity does not extend to ‘willful misconduct,’ the New York executive order‘s provision of immunity does not extend to ‘gross negligence.’”
In addition to the protections that may be afforded health care workers through an executive order, many states have statutory protections applicable to health care workers in an emergency. Using Minnesota as an example, these powers are referenced in the Minnesota Emergency Management Act of 1996, Minnesota Statutes Chapter 12.
Protection for Individuals and Entities Who Volunteer
Federal law may provide liability protections to volunteers. For instance, the Volunteer Protection Act (VPA) immunizes volunteers of governmental or nonprofit entities who cause harm if: (a) the volunteer was acting within the scope of his/her responsibilities at the time of the act or omission; (b) the volunteer was appropriately licensed, certified or authorized to perform the activity in question; and (c) “the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” Notably, however, the VPA does not provide liability protections to the volunteer’s employer.2
And with regard to COVID-19, the Coronavirus Aid, Relief and Economic Security (CARES) Act explicitly provides volunteer health care professionals with state and federal liability protections “for any harm caused by an act or omission of the professional” in providing health care services during the COVID-19 public health emergency if: (a) the professional, in good faith, is providing health care services (within the scope of his/her license, registration or certification) in response to this emergency; and (b) the act or omission occurs in the course of providing said voluntary health care services. There is no immunity, however, for harm caused “by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional” or if the health care professional rendered care while being under the influence of drugs or alcohol.3
Additionally, at the state level, individuals and entities who volunteer to help the state in the event of an emergency are afforded certain protections. For individual health care workers, if they volunteer to assist the state during an emergency and register with a state agency, and act under the direction and control of a state agency, they are considered an employee of the state for purposes of workers’ compensation, and tort claim defense and indemnification.4 Provided they acted in the course and scope of their “employment,” they will be represented and indemnified by the state in the event a claim is brought against them.
Similar protection is afforded entities, such as a hospital or health care system, provided the entity volunteers without compensation to assist a local jurisdiction in an emergency, and registers with that jurisdiction, and is under the direction and control of that jurisdiction. Such an entity “is not liable for civil damages or administrative sanctions as a result of good-faith acts or omissions by that entity or agent in rendering emergency care, advice, or assistance.”5 Minnesota’s protection to entities, however, does not apply “if the entity or agent acts in a willful and wanton or reckless manner in providing the care, advice, or assistance.”6
Protection for Services Provided in Temporary Medical Facilities
Minnesota law also provides protection for individuals and entities if it is necessary to provide care in certain temporary care facilities. The law applies to all “Responders,” which is broadly defined to include physicians, nurses, first responders, hospitals, clinics, laboratories, and other health care providers and entities. The governor must issue an executive order during a peacetime emergency finding that the number of seriously ill or injured persons exceeds the emergency hospital or medical transport capacity of one or more regional hospital systems, and that care for those persons has to be given in temporary care facilities.7
If that is the case, then a Responder who provides health care services in such temporary medical facilities “is not liable for any civil damages or administrative sanctions as a result of good-faith acts or omissions by that responder in rendering emergency care, or assistance.” 8 The protection does not, however, extend to “malfeasance in office or willful or wanton actions.”9
Note, this protection is not extended to health care providers who are working in temporary facilities outside of a hospital in an effort to segregate patients who have the coronavirus from other hospital patients. It only applies when the governor issues an executive order that the number of seriously ill patients exceeds the capacity of one or more regional hospital systems.
Limited liability protection is available to health care workers during a national emergency, such as the coronavirus. Immunity from negligence is available to Qualified Individuals who engage in a Recommended Activity with respect to a Covered Countermeasure pursuant to a federal contract or when following state agency directives. Additionally, state immunity applies to individuals and entities volunteering to help the state in an emergency and, as long as certain conditions are met, federal immunity applies to health care workers volunteering as part of COVID-19 response efforts. Protection from negligence is further afforded to health care workers, hospitals and systems when the governor issues an executive order finding that the capacity of the health care system requires the provision of services in temporary facilities.
1 42 U.S.C. § 247d-6d.
2 42 U.S.C. §14503
3 CARES Act § 3215
4 Minn. Stat. 12.22, subd. 2a(b).
5 Minn. Stat. 12.22, subd. 2b(b).
6 Minn. Stat. 12.22, subd. 2b(c).
7 Minn. Stat. 12.61, subd. 2(a).
8 Minn. Stat. 12.61, subd. 2(b).