In an April 15, 2020 letter to Congress, the American Medical Association and other physician organizations requested additional protection from “increased liability risk facing physicians and other clinicians” responding to the COVID-19 pandemic. The organizations request liability protections broader than the protections provided to health care volunteers in section 3215 of the CARES Act. The letter offers two potential policies: (1) providing “broad civil immunity to physicians and other clinicians for any injury or death alleged to have been sustained directly as a result to an act or omission in the course of providing medical services in response to the COVID-19 pandemic, with exceptions for gross negligence or willful misconduct”, which aligns with the approach provided in New York; and (2) extending “Federal Tort Claims Act liability protections to physicians and other clinicians providing care to COVID-19 patients or otherwise responding to guidance or protocols from a government entity.” The letter also requests changes to the Medicare Accelerated and Advance Payment Program, expanding small business loan funding, and tuition relief for medical students.
Politico is reporting that the New York State Nurses Association (“NYSNA”) plans to file multiple lawsuits next week “over a lack of personal protective equipment (“PPE”) and what it considers dangerous guidance issued by the state department of health during the coronavirus pandemic.” This would be the first legal action of this type arising out of the COVID-19 public health crisis. The NYSNA has previously been critical of the lack of PPE available to nurses. The NYSNA represents over 42,000 nurses and the article reports that a survey found 57 percent of members had inadequate protective gear.
Despite more stringent Long-Term Care Facility Guidance from CMS, coronavirus deaths in nursing homes have continued to increase. As of April 15, according to NBC News there were 5,670 deaths in nursing homes related to the virus. Additionally, there were 3,466 long-term care facilities in 39 states with coronavirus infections. The health care industry is also feeling the effects of COVID-19 on employment. According to Altarum, the health care sector lost 42,500 jobs in March, which is the largest single month loss going back to 1990. The majority of these job losses were in ambulatory settings, dental offices, and home health.
Norton Rose Fulbright attorneys will continue to follow on a daily basis COVID-19-related developments pertinent to health care providers and publish regular updates in the Health Law Pulse.