We are in an unprecedented global pandemic and recognize the leadership of state officials as they work around the clock to lead us through these unchartered waters. “Shelter in place” orders, closing schools and opening field hospitals are just some of the many ways they have been working to protect us all. But we need to expand that protection to include the unsuspected financial risks these caregivers and hospitals are facing during this time. For this reason, I applaud New York Gov. Andrew Cuomo for recognizing this void and urge other leaders across the country to consider offering broad immunity to health care providers or simply expand their existing good Samaritan laws. We need to do our job to support our medical practitioners so they can do theirs to support us.
The Hippocratic Oath, a pledge of the medical profession that dates back centuries, holds true today and includes a vow to treat the sick with all measures. Now, more than ever in our lifetime, this oath is being tested as doctors and medical professionals at every level are being stretched beyond their limits. When most people with the slightest hint of a fever or cough are panicking that they might have contracted this deadly virus, physicians are selflessly putting the safety of themselves and their loved ones at risk to help patients in need.
While most of the media’s attention has understandably focused on the physical protection of medical staff from COVID-19, far less attention has been paid to the financial and legal protections that they need and deserve. Many have parents, spouses and children, yet they rush into a “burning building,” not pausing to think about future lawsuits that may arise out of their noble acts.
As principal for a New Jersey-based not-for-profit malpractice insurance carrier, I am privileged to insure hundreds of private practice physicians who are committed to excellence in patient care. Over the past several days, our organization has fielded many new calls from doctors seeking guidance when they have been asked to treat patients outside of the scope of their specialty at their hospitals as other treating doctors are infected or, more tragically, there are simply not enough physicians to test, treat and care for COVID-19 patients.
The problem lies in the fact that state good Samaritan laws, like those in New Jersey, were primarily written to protect health care providers if they provide treatment without compensation and when such treatment is rendered during a circumstance of an imminent danger (i.e. help at the scene of a car accident site or a heart attack on an airplane). However, by case law, physicians who assist a patient in the hospital cannot invoke the protections of the statute. Put more simply, the protections of New Jersey’s current good Samaritan law stop at hospitals’ doors.
Ironically, today, the “scene” of this emergency is the hospital itself, depriving medical providers protection in the one setting where it is needed most. Whether retired doctors and nurses volunteering to return to the front lines or physician specialists working outside their traditional practice scope or certification, their assistance within ICUs, CCUs, emergency rooms and other areas seem to fall outside the protections of the current good Samaritan law.
Like Cuomo, the federal government has recognized the void in the protection of doctors and other medical professionals during this pandemic, prompting the U.S. Department of Health and Human Services to issue a declaration pursuant to the federal Public Health Service Act, which provides immunity for certain activities related to medical countermeasures against COVID-19. While this declaration is a strong first step in protecting the entire medical community from the potential threat of lawsuits, it doesn’t fully insulate these professionals when they act quickly and outside their traditional areas of practice to assist in the pandemic and this declared state of emergency.
Sadly, medical malpractice policies may not provide coverage when the doctor acts outside their specialty, and even if malpractice insurance did provide some level of coverage, the mere fact that these doctors would be less qualified and experienced than the traditional physicians normally performing the role forces that doctor to be openly criticized or risk personal family assets years later if sued, unless critical change to their potential liability is implemented during this crisis.
To further compound the matter, as physicians are being urged to utilize telemedicine and postpone elective surgeries so hospitals can reserve their resources for COVID-19 patients, the nontraditional use of telemedicine instead of face-to-face office visits leave physicians even more exposed to future malpractice claims.
Against this ever-changing backdrop, I respectfully urge state governments to quickly follow Cuomo’s recent promulgation, and issue similar executive orders or explicitly expand good Samaritan laws in light of the state of emergency created by the novel COVID-19 outbreak. For example, changes that I have proposed for New Jersey would:
- Expand the “good Samaritan” statute to include physicians and medical staff when helping during this state of emergency related to a pandemic (i.e., COVID-19), whether or not they ultimately are compensated for their services.
- Expand the “good Samaritan” statute to include health care professionals offering services outside their specialty and/or certification.
- Expand the “good Samaritan” legislation to relax the standard of care to gross negligence or recklessness, as a means of protecting doctors practicing telemedicine/telehealth in an effort to free up facilities, equipment and resources for COVID-19.
- Impose a heightened burden of proof for any professional negligence claim flowing from treatment provided related to this pandemic during the state of emergency.
While changes to official laws and bills can take months or even years, such actions now will protect the health care practitioners who are so selflessly working around the clock. We can see there is no time to waste as the numbers continue to rise day by day, hour by hour. Let us do our part to protect our health care workers so that they can protect us.
Eric Poe is principal and serves as complex claims litigation officer for New Jersey Physicians United Reciprocal Exchange, NJ PURE, a leading not-for-profit direct writer of medical malpractice insurance in New Jersey.