AMA to governors: Physicians need COVID-19 liability protections

Tanya Albert Henry , Contributing News Writer

The AMA is calling on governors to protect and expand the physician workforce by adopting protections for physicians who are following COVID-19 guidelines as they now work to provide care under “extreme pressure” and “overwhelming circumstances.”

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This includes physicians who are on the front lines providing care to patients—amid rampant shortages of essential personal protective equipment—as well as physicians who have delayed elective or nonurgent surgeries, procedures and care to help slow the spread of COVID-19. Such moves have come pursuant to government directives and help preserve health care resources such as personal protective equipment and hospital beds.

In a letter to the National Governors Association, AMA Executive Vice President and CEO James L. Madara, MD, also urges governors to remove obstacles for physicians who want to fill workforce gaps in COVID-19 hot spots.

“These physicians would not want to be anywhere else; caring for patients is their top priority, it is their passion and their calling,” Dr. Madara wrote. “Yet, these extreme circumstances also make these physicians vulnerable to future liability claims, adding stress to this already high-pressure situation.

“To help alleviate this burden, we encourage governors to take care of these frontline physicians and health care professionals by adopting health care emergency response protections so they can continue providing care to patients without fear of what the future holds,” the letter states.

Protections need to extend to physicians who are postponing care for some patients because although physicians and panels of experts often determine which medically necessary surgeries and procedures should be temporarily delayed, the delays may in extreme cases result in unforeseeable negative outcomes. The delays are due to federal, state and local directives to delay elective and nonurgent care and often decisions are not the treating physician’s alone to make. What constitutes urgent versus nonurgent care is many times not a black-or-white call.

“Physicians and patients alike understand these decisions are necessary for the common good to mitigate the spread of the virus and preserve the valuable resources and supplies so that hospitals are fully prepared for an influx of COVID-19 patients. Yet the uncertainty of such decisions required by these directives leaves physician vulnerable to future liability claims,” the letter says. “That is why the AMA strongly urges governors to extend civil immunity for harm resulting from an act or omission related to a federal, state or local directive, including but not limited to those to cancel, delay or deny care as a result of the COVID-19 pandemic.”

Stay up to speed on the AMA’s COVID-19 advocacy efforts and track the fast-moving pandemic with the AMA's COVID-19 resource center, which offers a library of the most up-to-date resources from JAMA Network™, the Centers for Disease Control and Prevention, and the World Health Organization. 

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Laws also need to go further for physicians who want to cross state lines to help in “hot spots,” the letter says. Most states took steps to modify licensure requirements to allow out-of-state physicians to practice in the state, but a fear of future lawsuits is still an obstacle for some doctors who wish to volunteer.

Good Samaritan statutes and similar civil immunity protections don’t go far enough to protect these physicians and the AMA is urging governors to adopt “broader civil immunity and provide coverage to both volunteers and paid physicians.”

That would remove “barriers to physicians responding to the call to action in areas experiencing a surge in COVID-19 patient,” the letter explains.

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The AMA and the Medical Professional Liability Association created a resource that explains liability policy gaps that may exist in states, outlines the appropriate vehicle to implement policy changes and offers sample language to improve protections.

Governors looking to expand protections also can look to how New York and Connecticut have handled the situation, Dr. Madara’s letter notes.

New York Gov. Andrew Cuomo issued an executive order that provides civil immunity to medical professionals for any injury or death alleged to result from an act or omission while they provided medical services in response to the COVID-19 outbreak.

New York’s legislature provided further protections for care provided pursuant to state or federal directives.

Similarly, Connecticut’s Gov. Ned Lamont provided immunity for civil liability for any injury or death alleged to have happened because of an individual’s or health care facility’s acts or omissions taken in good faith while providing health care services to support the state’s COVID-19 response.

And Massachusetts Gov. Charlie Baker signed a bill into law that protects health professionals from lawsuits and civil liabilities for health care services they provided or decisions they made in good faith under a COVID-19 emergency rule and under the conditions that the COVID-19 outbreak created.