QUESTION: Physicians have been offering to provide services outside their specialty to assist with our hospital’s COVID-19 response. However, they’re concerned that their malpractice insurance may be limited to care provided within their specialties. Are there any other legal protections available to them?
ANSWER: Yes. There are several federal laws that would protect physicians from malpractice liability for services provided to COVID-19 patients. The best protection is for those who volunteer their services (i.e., do not bill or otherwise receive compensation). State law should also be reviewed, as many states have similar protections.
None of the following statutes can prevent a lawsuit from being filed, and none provide absolute protection to health care professionals. However, they should provide reassurance to professionals who provide services that might fall outside the limits of their insurance policies.
- CARES ACT
The federal Coronavirus Aid, Relief and Economic Security Act (CARES Act) was passed on March 27, 2020 to address the COVID-19 pandemic. Section 3215 of the CARES Act states broadly that:
a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency with respect to COVID–19 declared by the Secretary of Health and Human Services…
Importantly, the CARES Act applies only to “volunteers,” which means the Act does not apply to professionals who bill third party payors for their services or who receive any other compensation. The only exception is that mileage and lodging can be provided to those who travel more than 75 miles to volunteer their services.
The CARES Act applies to professionals who provide “health care services,” which is defined broadly to include “the diagnosis, prevention, or treatment of COVID-19” or “the assessment or care of the health of a human being related to an actual or suspected case of COVID-19.” Thus, any action taken by a volunteer with respect to a suspected or actual COVID-19 patient should be covered. However, the CARES Act wouldn’t apply to physicians who volunteer to treat non-COVID patients to relieve the burden on those treating COVID patients.
The CARES Act also requires health care professionals to be providing services “within the scope of the license, registration, or certification of the volunteer.” This will not pose a problem for physician volunteers, but non-physician volunteers should be careful not to exceed their licenses.
Not surprisingly, the CARES Act does not apply to willful or criminal misconduct. Most of the laws described below have a similar limitation.
- PREP ACT
The federal Public Readiness and Emergency Preparedness Act (PREP Act) differs from the CARES Act in that the PREP Act is not limited to volunteers. Health care professionals who are paid for, or bill for, their services are still covered by the PREP Act.
However, the PREP Act probably applies to a narrower set of actions by health care professionals. The PREP Act provides legal protection to persons and entities that manufacture, distribute, administer, prescribe or use “Covered Countermeasures.” A Covered Countermeasure is a drug, device or biological product used to treat COVID-19. It is not clear if the PREP Act would apply to allegations that a physician failed to diagnose COVID-19 or took some other action that did not involve a drug, device or biological product.
- VOLUNTEER PROTECTION ACT
The federal Volunteer Protection Act (“VPA”) provides that a volunteer to a nonprofit organization cannot be held liable for harm caused by any act or omission so long as the volunteer was acting without compensation and within the scope of the volunteer’s responsibilities.
To be covered under the VPA, an individual must be a “volunteer” – which means that he or she must be volunteering for a nonprofit organization and cannot receive compensation, or anything else of value, in excess of $500 per year.