Client Alert: COVID-19 and Medical Professional Liability

Date: March 31, 2020
During this unprecedented global pandemic, much of our attention has appropriately focused on the physical protection of medical professionals from COVID-19.  But, in the coming months and years, the focus will shift toward the legal protections afforded to medical professionals treating [suspected] patients of COVID-19.

Medical professional liability laws vary by state.  Generally, immunities are afforded to providers through legislative measures.  In a time of emergency, such as the current pandemic, these immunities can be executively ordered.

New York, considered the epicenter for the pandemic in the United States, is the first state to grant medical professionals immunity from civil liability arising out of treatment related to COVID-19, provided that the professional’s conduct does not rise to the level of gross negligence.  This qualified immunity afforded by Executive Order 202.10 extends to any injury or death alleged to have been sustained as a result of any act or omission on the part of a medical professional.  Medical professionals immune from liability for ordinary negligence are:
  • Physicians
  • Physician assistants
  • Specialist assistants
  • Nurse practitioners
  • Licensed registered professional nurses
  • Licensed practical nurses

It should be noted that a previous executive order declared New York a Disaster Emergency, as the impact on public health has exceeded the medical response capabilities of the state.  While we remain hopeful that other states will not need to follow suit, it remains a possibility given how wide spread COVID-19 infections are across the country.  In addition, it is anticipated that any executively ordered grant of immunity will be challenged in future medical malpractice litigation.

Medical professionals and insurers should be aware of other legal consequences arising from COVID-19 as well.  In many states, providers are being asked by hospitals to act outside of their specialty.  Medical malpractice insurance may not provide coverage in these circumstances.  Even if some level of coverage exists, the treatment provided is susceptible to challenge based on the reality that these professionals are less qualified as compared to a provider in the specialty.

Similarly, physicians are being urged to utilize telemedicine given the potential exposure to COVID-19.  The use of nontraditional medicine instead of face-to-face office visits also has the potential to leave physicians more exposed to future malpractice claims.

The impact of COVID-19 on medical professional liability is nuanced and evolving.  Our professional liability and torts defense attorneys are monitoring all legal developments and their impact on insurance providers and medical professionals.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.