Pandemic medical liability protections considered by Congress

October 12, 2020

"Lawmakers must prioritize medical liability protection and support health care workers on the frontlines of the COVID-19 pandemic," writes Ross E. Weber of the AACU.

Based on a partnership with Urology Times, articles from the American Association of Clinical Urologists (AACU) provide updates on legislative processes and issues affecting urologists. We welcome your comments and suggestions. Contact the AACU government affairs office at 847-517-1050 or info@aacuweb.org for more information.

As the coronavirus disease 2019 (COVID-19) pandemic persists, physicians, facilities, and other providers continue to cope with unprecedented burdens on their time, energy, and resources. At the same time, the ever-looming threat of medical malpractice claims related to the transmission of COVID-19 creates further challenges for physicians coping with high levels of stress and tight work schedules. Not surprisingly, Reuters reported in early April that advertising for medical malpractice cases was already on the rise, as were actual filings of such lawsuits. State-level protection from questionable claims are among the first emergency measures to be withdrawn, but there are several pending federal attempts to fill the void.

Coronavirus Provider Protection Act

In June, more than 130 medical societies, including the AACU, signed a letter calling on Congress to adopt the “Coronavirus Provider Protection Act” (H.R. 7059), legislation that proposes targeted and limited protections from medical liability lawsuits where health care services are provided or withheld in situations directly related to COVID-19. In practice, a physician would be shielded as long as they followed government guidelines or lacked resources due to COVID-19. The legislation extends those protections to those who provide or withhold care in good faith during, and shortly after, the public health emergency.

The AACU also tapped into its network of contacts on Capitol Hill to promote support for H.R. 7059. In short order, 2 members of Congress, Rep. Andy Harris, MD (R-MD) and Greg Murphy, MD (R-NC), indicated they would cosponsor the bill and work to secure its passage.

SAFE TO WORK Act

In the Senate, Majority Leader Mitch McConnell has stood firm in support of liability protections. “We are not going to let trial lawyers throw a party on the backs of front-line workers and institutions who fought this new enemy on the front lines,” he said. Sen. McConnell himself introduced the SAFE TO WORK Act (S. 4317) with Texas Republican Sen. John Cornyn to discourage "insubstantial lawsuits relating to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief." A central point of the bill, according to a Senate aide, is to create a federal cause of action for medical malpractice suits.

COVID-19 relief package

As negotiations on a fourth coronavirus relief deal progressed throughout the summer, Sen. McConnell’s insistence that liability protections be included has put him at odds not only with House Democrats, but the White House, as well. President Trump indicated he is willing to forgo any issues other than evictions and unemployment, if it means an agreement can be reached. The Hill quotes the President as saying, “the rest of it, we’re so far apart we don’t care.” However, the Senate’s relief package introduced in late July includes a 5-year shield from coronavirus-related lawsuits and provides a safe harbor for businesses that undertake reasonable efforts to comply with public health and safety guidelines.

With an estimated 50%-80% of urologists’ patients age 65 years or more, the specialty is particularly at risk for COVID-19-related lawsuits. With that in mind, the AACU, for one, has been a leading voice for legislation that would provide reasonable and limited protection for physicians from lawsuits due to circumstances that are beyond their control. Throughout negotiations on pandemic relief, lawmakers must prioritize medical liability protection and support health care workers on the frontlines of the COVID-19 pandemic.