The topic of "qualified immunity" from COVID-19-related claims against healthcare providers has been publicized and debated. Is it a panacea for healthcare providers?

Posted in Coronavirus on Friday, October 9, 2020

Qualified immunity, a type of legal immunity provided for individuals and corporations under certain circumstances, has been a hot topic in the healthcare community, with some states enacting laws to provide qualified immunity to healthcare providers. In general, it may provide healthcare workers with civil liability protection from claims arising from COVID-19-related injuries, due in part to our ever-evolving understanding of the disease. For example, at one point, the quarantine period for those exposed to COVID-19 was 14 days. Most recently, that period has been reduced to 10 days. This time span is subject to change as we learn more. As a result, healthcare providers are caught in a conundrum. Do they risk a claim arising if they followed guidelines that are now obsolete as we have learned more?

Several states are trying to tackle this issue and some have already passed legislation. Here are some key points to remember with this legislation, if it’s applicable in the state or states where you practice:

•  “Qualified immunity” does not provide full immunity to lawsuits
  • Certain conditions need to be met, based on what your state has determined, in order to prove a claim of negligence
  • For a malpractice claim to be successful, the plaintiff must prove:
    • A duty to the patient (doctor/patient relationship)
    • A breach of that duty
    • Proximate cause of the injury relating to that breach
    • Damages as a result of the injury
• The immunity legislation may make it more difficult for plaintiffs to prove a medical malpractice claim
  • For example, in some jurisdictions:
    •  The plaintiff must prove reckless conduct, intentional misconduct or willful or wanton misconduct
    • The legislation is retroactive to encompass the changing knowledge base
    • Recognizes that government orders, recommendations or guidelines create or can be interpreted as creating a duty of care
    • Give a temporary (some legislation has an expiration date) reprieve for healthcare providers for potential liability

PSIC recommends that you follow the standards of care applicable to your practice and that you be familiar with requirements of immunity legislation if applicable in the state or states where you practice. In order to fully understand your responsibilities, we recommend you contact a health care attorney in your state(s) who is knowledgeable about these topics.  Your state professional association may also have resources available.

We also recommend that you follow the CDC and your state and local health authority guidelines in place for COVID-19. Not following the guidelines may increase your risk of liability. We recommend that you stay updated on the guidelines, provide appropriate training to your staff, and document the implementation of these efforts.