Since at least the “60s,” the business community through its many associations and chambers of commerce have vigorously lobbied for reduced standards, regulations and limited liability across the entire commercial landscape. Their efforts have been ably combated by a myriad of consumer advocacy organizations and the plaintiff’s lawyers through the Trial Lawyers Association (TLA). Well, we are at one of those crossroads in this ongoing battle where the business lobby has decided to make lemonade out of the COVID-19 lemons—Tort-Reform. As widely reported, the President and the Senate majority will leverage the passage of the next long-awaited and needed COVID-19 relief package to ensure the enactment of a broad-based federal limit on the current liability exposure confronted by employers and commercial enterprises, most of which are unrelated to the current pandemic. Notwithstanding this tempting broader public policy issue, our current consideration is limited to an analysis of the Long-Term Care (“LTC”) and Behavioral Health Residential Care (“BHRC”) service providers, given their newfound exposure to a pandemic. Whether limiting or immunizing their legal exposure currently being considered and is needed and/or good public policy?
Prior to the pandemic the LTC and BHRC industries were, in most jurisdictions, held to the general standard of care that all other commercial enterprises were held; that being, liability to those to whom they owe a duty for damage directly caused as a result of either their negligence or breach of the professional standard of care, in the case of professional services. With respect to medical malpractice claims, many states have additional procedural requirements that must be met to file a claim. But it does not generally reduce the duty or standard of care.
Starting with New York and running through the states most gravely hit by COVID-19, jurisdictions have been immunizing varying parts of the healthcare-related provider community as they provide relief. This has been accomplished in some cases as part of aid enactments and in others by gubernatorial executive orders. The federal government included limited immunity in the recently passed CARES Act to protect volunteer health care workers from liability in the absence reckless conduct or gross negligence. In addition to New York, New Jersey, Massachusetts, Oklahoma, and North Carolina have followed the legislative route while Pennsylvania, Michigan, Illinois, Connecticut are among those opting the executive order option. These lists continue to grow. All are not uniform. Most include an exception with respect to acts that constitute crimes, gross negligence, fraud, malice, reckless or willful misconduct. Accordingly, a careful analysis of each grant of immunity is essential to determine the protection. There is divergence on whether facilities and entities are covered. Pennsylvania’s Order, for instance, covers individuals who are licensed or certified or authorized to practice a health care profession engaged in emergency services, activities or the provision COVID-19 disaster services. Those covered can be working at most health care facilities including the LTC and BHRC facilities. However, while relaxing many regulations, Pennsylvania did not immunize the healthcare (LTC/BHRC) facilities themselves, medical equipment and protective gear companies, out-patient practitioners, or physicians dealing with the pandemic fallout but not treating COVID-19 patients. As is readily apparent, these limited grants of immunity have not altered the duty or standard of care owed but only granted limited immunity to some individuals or entities. Further, relaxation or removal of certain regulatory mandates may impact the duty of care, but it is certainly not determinative. Accordingly, LTC and BHRC facilities and staff must commit to compliance with all state and federal regulations and guidance as well as those industry and credentialing standards as such change with scientific and medical developments.
Recently, many state officials have had a lot of attention and TV time. What is the impact of recommendations made by governors in this context; a guidance; a bulletin; a regulation or merely an executive tweet? To cite just a few, Governor Cuomo has stated that if a nursing home cannot handle a COVID-19 resident(s), it should call the NY Health Department and the state will relocate the patient(s). Thereafter, he stated that every nursing home should test its residents and staff twice a week. While providing nursing homes with some tests, the Governor asserted other tests are available in the marketplace.
Appropriate Risk management standards for LTC and BHRC indicate that providers should follow the following protocol:
- Abide by all federal and state regulations and guidance relating to your facility, staff, and residence. Be vigilant since these are constantly changing as the crisis changes from wave to wave.
- Be compliant with all industry and credentialing standards because the duty you are charged with may be higher than the governmental regulatory mandate. Again, this requires vigilance as such are also changing as the science develops.
- If such cannot be met, take appropriate remedial action including notification to the regulators and the resident’s family and work with the county and state health officials to protect those in your charge.
- Create a written plan that is state of the art and science to reasonably deal with COVID-19 now and into the future by which you are measured.
- Forget immunity. Act as though you have no immunity, even if you do. Leave immunity to your lawyers, insurance brokers and risk managers.
Winners and losers
The appropriate winners clearly are the individual healthcare-related practitioners and small mission-driven nonprofit facilities covered by the limited immunity. The not so appropriate winners are the liability insurance carriers who receive a windfall. The losers are the healthcare consuming public who suffer damages from negligent care without recourse or remedy.
ABOUT JOSEPH T. KELLEY JR.
Joseph T. Kelley Jr., Chair of Offit Kurman’s Health Care practice group, focuses his practice on business and corporate law and governance, for both nonprofit and for-profit companies, general counsel services, corporate criminal defense, and healthcare law. As general counsel for large and small healthcare providers and for a host of other organizations in the healthcare industry, Mr. Kelley provides a wide range of services. He works closely with his clients to guide them in their commercial and professional enterprises and to anticipate their legal concerns.
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