On July 27, 2020, Senators Mitch McConnell (R-KY) and John Cornyn (R-TX) released the SAFE TO WORK Act (“the Act”).   The Act was released as part of the Senate Republicans draft coronavirus legislation, the HEALS Act, which stands for Health; Economic Assistance; Liability protection; and Schools.  The Act seeks to limit liability for healthcare providers and facilities related to the treatment, diagnosis or care directly affected by the coronavirus.  The term “health care provider” is broadly defined as “any person, including an agent volunteer, contractor,  employee, or other entity who is (i) required by Federal or State law to be licensed, registered, or certified to provide health care and is so licensed, registered, or certified (or is exempt from any such requirement); (ii) otherwise authorized by Federal or State law to provide care (including services and supports furnished in a home or community-based residential setting under the State Medicaid program or a waiver of that program); or (iii) considered under applicable Federal or State law to be a health care provider,  health care professional, health care institution, or health care facility.”     The Act would protect health care providers from coronavirus-related medical liability unless a plaintiff can prove by clear and convincing evidence:

(1) gross negligence or willful misconduct by the health care provider; and

(2) that the alleged harm, damage, breach, or tort resulting in the personal injury was directly caused by the alleged gross negligence or willful misconduct.

The Act creates a federal cause of action for coronavirus medical liability claims.  The cause of action covers injuries arising out of conduct between December 1, 2019 and the end of the public health emergency declaration issued by the Secretary of Health and Human Services or October 1,2024, whichever is later.  The Act would not preempt any provision of Federal, State, or Tribal law that imposes stricter damage or liability limits for personal injury “caused by, arising out of, or related to an act or omission by a health care provider in the course of arranging for or providing coronavirus-related health care services, or otherwise affords greater protection to defendants in any coronavirus-related medical liability action” than provided in the legislation.  The Act also provides original jurisdiction to federal district courts for “any coronavirus-related action.”

Senate Majority Leader McConnell has indicated he will not negotiate with Democrats on the proposed liability protections.  However, it is unclear at this time whether these protections will ultimately be included in any final legislation, which will need to pass the Republican-controlled Senate and Democratic-controlled House of Representatives.  There remain significant disagreements between the parties as to what should be included in the final legislative package.   In May, the House of Representatives passed legislation containing over $3 trillion of relief efforts.

Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse related to the COVID-19 pandemic.