By Tony Pugh + Lydia Wheeler
Doctors reopening practices following the Covid-19 slowdown are facing pent-up demand for elective procedures that were largely halted by states when the pandemic took off.
As physicians start to greenlight the joint replacements, heart procedures, and non-emergency surgeries that were postponed months earlier, the nation’s largest association of medical providers is pushing to make sure doctors aren’t held liable for any ill effects from the delayed care.
The American Medical Association wants states to grant doctors civil immunity from harm resulting from medical care that wasn’t rendered due to federal, state, or local directives to cancel, delay, or deny non-urgent care because of the pandemic.
That push for expanded liability protections highlights an ongoing debate over the extent that medical providers should be held accountable for failing to give proper care in the wake of an unprecedented public health event.
The AMA says liability shields are crucial for providers to continue fighting on the front lines of the crisis without fear of costly litigation. But some health industry legal observers say there should be limits on how far that immunity extends.
“To suggest that medical procedures be foregone or delayed, in any specific arena—knee surgeries or ophthalmology, or reproductive care, all this stuff—to think that all of that should be bundled into a non-liability event because we’re in a public health event around Covid? That is quite exceptional,” said James Hodge, a law professor at Arizona State University who focuses on emergency legal preparedness.
“I think it’s shameless,” said Heidi Li Feldman, a professor at Georgetown University Law Center who focuses on torts law. “It’s not a good look for people responsible for health and welfare to be saying ‘and please make sure we’re never questioned as to whether we acted carefully enough.’”
Approximately 37 states have some type of liability protection for health-care providers caring for patients during a public health emergency. Of those, 22 states have put in place new protections specifically in response to the Covid-19 pandemic, said Valerie Gutmann Koch, an assistant professor at the University of Houston Law Center.
The majority of those protections are broadly drafted, so they cover almost any actions “in support of” the state’s Covid-19 response, Koch, who is co-director of the center’s Health Law & Policy Institute, said. Just two or three states have liability shields that only cover care provided to Covid-19 patients.
The expanded protections make perfect sense, said Robert Bradner, a D.C.-based partner at Holland & Knight who lobbies on behalf of a medical malpractice insurer. He said it would be unreasonable to hold doctors liable for delaying care if it was “believed to be the best possible thing to do under the circumstances.”
Doctors have been “incredibly worried about liability in the last few months across the board,” said Michelle Mello, a professor of law at Stanford Law School and a professor of medicine at Stanford University School of Medicine.
The initial concern was being held liable for medical malpractice while trying to care for a surge of Covid-19 patients with limited equipment, but doctors are now worrying about how non-Covid patients are treated, Mello said.
The AMA in April sent a letter asking the National Governors Association to support an initiative to expand liability protections for delayed elective procedures.
“Deciding which medically necessary surgeries and procedures can be temporarily delayed are complex multi-faceted determinations often made by the physician and panels of experts,” AMA CEO and Executive Vice President James Madara said in the letter. “Even with layers of protocols and processes, such decisions are not guaranteed,” and “at the extreme, may result in unforeseeable negative outcomes.”
On May 29, the AMA backed a bipartisan House bill that would provide physicians the same protections nationally that the group is seeking from individual states.
The bill (H.R. 7059), by Reps. Phil Roe (R-Tenn.) and Lou Correa (D-Calif.), would shield health-care professionals from liability for harm caused by any acts or omissions in the course of providing care during the emergency, with exceptions.
Those legal protections would be in effect throughout the pandemic emergency and for 60 days afterward under the bill, which hasn’t yet advanced.
Standard of Care
In a majority of the states that already granted immunity shields during the crisis, those protections “could be interpreted to cover withholding, postponement, or cancellation of interventions because of Covid-19,” Koch said.
Most states, however, haven’t acted on the AMA’s push to expand liability protections for delayed care, Hodge said. Most have opted instead to shield doctors and other providers who directly treated Covid-19 patients, he said.
That’s probably because the common law “standard of care” changed in March when most elective procedures and surgeries were suspended in order to curb Covid-19 infections and preserve hospital capacity, Hodge said.
States “generally, don’t need to write legal protections” for care that wasn’t rendered because withholding care was the accepted standard at the time, he said.
Bradner said care standards are based on published literature, medical guidelines by specialty societies, and customary practices in different jurisdictions. The extra protections sought by the AMA would help shield against any legal disputes about care standards, he said.
Feldman said more than half of states already require plaintiffs to submit a sworn statement that they’ve consulted an expert who can certify the case has merit.
“It provides a case-by-case immunity, if you will, from suits that aren’t well grounded,” Feldman said.
Requirements for those merit affidavits vary from state to state, however, making them an unreliable backstop for meritless claims, Bradner said.
The AMA also said the affidavit of merit requirements aren’t enough to protect physicians in the uncertainty of a medical emergency. And even meritless claims can have a serious financial, mental, and professional impact on a practice.
Still, not everyone is worried about a rush of litigation against doctors that delayed or denied care due to Covid-19.
While it’s possible, the threat is rare, Mello said.
“In theory, anyone can sue you at any time when they have a bad outcome in health care, especially if they have evidence that the kind of care they got looks different than the kind of care people would ordinarily expect to get,” she said.
“But the ordinary common law standard of care, meaning just the standard that has evolved through judgments over the years, is flexible enough to account for special circumstances in which physical and human resources are not available and doctors are doing the best they can,” Mello added.
Feldman said the AMA’s goal isn’t to root out bad lawsuits, but all lawsuits. “To put forward a request for immunity from suit, without offering any suggested substitute, is essentially a request to say we should have a license to act carelessly,” she said.
The AMA, which declined requests for interviews, said in an e-mail that it doesn’t support immunity in instances of gross negligence or willful misconduct by physicians.