Murchison & Cumming LLP

A Modification of Professional Medical Liability on the Horizon?

April 15, 2020

By: Anton N. Handal

A GOP senator introduced a bill that would grant broad legal immunity for health care providers providing treatment outside of their specialties to COVID-19 patients for the duration of the national health emergency. The implications of the bill extend to all medical service providers who jump into the fight against the disease.

Sen. Ben Sasse, R-Neb., floated a bill that would create the Facilitating Innovation to Fight Coronavirus Act. The legislation would shield health care providers from federal, state and local civil liability if they are testing or treating coronavirus patients and use a medical device for an unapproved use; practice outside of their specialty but under the instruction of an individual who is licensed in that specialty; or provide care outside of the premises of a standard health care facility. The measure would expand the protections already afforded volunteer healthcare workers under the Coronavirus Aid, Relief and Economic Security Act, or CARES Act.

The proposed legislation comes amid efforts at State levels to facilitate treatment by health care providers. New Jersey, Texas, Pennsylvania and other states have issued temporary waivers of regulatory requirements such as licensing restrictions for out-of-state health care providers. As a result, hospitals and health care systems can start providing patient care at off-site locations to treat COVID-19 patients away from main facilities, and permits hospitals to triage patients at community-based locations such as surgical centers, hotels and dorms.

"Front-line health care providers need to be able to focus on patient care in the most flexible and innovative ways possible," Centers for Medicare and Medicaid Services Administrator Seema Verma said in a statement. "This unprecedented temporary relaxation in regulation will help the healthcare system deal with patient surges by giving it tools and support to create nontraditional care sites and staff them quickly."

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