By Cory Greenleaf
I. The Coronavirus’s
Impact on Healthcare
Along with the Spanish flu, cholera, the Bubonic plague and smallpox, the novel coronavirus (“COVID-19”) has caused one of the worst global pandemics in history. While businesses closed and the public quarantined, many healthcare providers were pushed to the front line to confront the virus; others were shuttered from work entirely. As the spread of the virus worsened, healthcare providers found themselves struggling to provide adequate care due to shortages in staff, hospital space, beds, personal protective equipment, and medical equipment such as ventilators. Consequently, many providers have been stretched to their limit, unable to deal with the surging number of COVID-19 patients.
Aside from the systematic challenges faced by healthcare institutions in light of the COVID-19 pandemic, the virus has also had a major effect on how providers care for their patients, and the quality of such care. For instance, oncologists are adjusting how they administer treatment to their cancer patients, home care and hospice facilities are modifying how they attend to the medically disabled, the homebound, and those in need of end-of-life care, and nurses are pushed into situations with lack of support, education, and psychological and social support.
Separately, in response to the pandemic, healthcare providers have been asked to render care outside of their specialty, use equipment that they are not accustomed to, and adjust protocols based on shortages due to need for COVID-19 patients. Many hospitals have created and implemented crisis resource management protocols, limiting the use of scarce resources to priority groups of patients. Some of these COVID-19 regimens of care have been implemented based on limited or no peer-reviewed data. Ultimately, one could assume that, due to these struggles, healthcare providers may be more apt to provide unsatisfactory care to their COVID-19- and non-COVID-19-patients. Thus, the liability for providing care below the recognized standard of care is a clear concern.
II. The Response to Protect Healthcare Providers
A majority of states have passed legislation and signed executive orders offering extensive protections to healthcare providers in light of the pandemic. While the language of the actions varies from state to state, there is one common theme: healthcare providers who engage in gross negligence or intentional misconduct will not be protected.1 Because most states do not define what medical conduct rises to level of “gross negligence,” that answer will likely be derived by courts. Notably, state courts have constructed their own definitions for what constitutes gross negligent conduct, but frankly none of this language was intended to apply during a pandemic.
At the federal level, Congress has considered a handful of legislative responses since the coronavirus began to take its toll in the U.S. On March 17, 2020, then Secretary of Health and Human Services Alex Azar authorized the Public Readiness and Emergency Preparedness Act “to provide immunity for activities related to countermeasures against COVID-19.”2 Simply put, absent current protection under federal law, the PREP Act grants medical providers and entities protection against claims of loss resulting from the use of drugs or medical devices when caring for COVID-19 patients, unless those measures taken involved “willful misconduct.” To date, there is no case law defining what medical negligence constitutes “willful misconduct” pursuant to the PREP Act.
It is also worth noting another piece of federal legislation that drew significant attention when introduced but appears to lack any fighting chance. That proposed law, the Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act, was introduced by Senate Republicans on July 27, 2020, citing the “risk of a tidal wave of lawsuits” in response to the pandemic which could impact businesses, educational institutions, religious organizations, nonprofit organizations, government entities, and healthcare workers.3 If enacted, the federal law would impose strict limitations on tort liability regarding COVID-19-related actions. Additionally, the federal law would also permit such lawsuits to be removed to federal court by any defendant. Importantly, the law defines both gross negligence and willful misconduct.4
III. New Hampshire
To date, no legislation has been passed to extend liability protections to New Hampshire healthcare workers. However, in response to Gov. Chris Sununu’s March 13, 2020, executive order declaring a state of emergency, then Attorney General Gordon J. MacDonald issued General Opinion No. 2020-01, concluding that healthcare facilities and their employees and volunteers are immune from civil action as “emergency management workers” pursuant to N.H. RSA 21-P:35, V. According to the opinion, so long as healthcare workers “take reasonable steps” to comply with the governor’s order, they will be civilly immune from liability.
Of course, the attorney general’s opinion is not legally binding, and it remains unclear whether the New Hampshire Supreme Court would adopt its language.5 It is uncertain, moreover, what remedies, if any, a plaintiff would have had they been injured due to the negligence of a healthcare provider during the COVID-19 state of emergency. For instance, it seems evident that a patient who inadvertently contracts the virus in an emergency room may not subsequently recover from the hospital in a civil lawsuit. But what about a patient who dies because the hospital failed to intubate and initiate mechanical ventilation to a patient?6 These are questions that the courts very well may have to answer.
1. See, e.g., An Act relating to the state of emergency in response to COVID-19 and declaring an emergency, S.B. 150, 2020 Reg. Sess. (Ky.2020)
2. In invoking the immunity protections of the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. 243 et seq., the Secretary of Health and Human Services shielded manufacturers, distributors, and healthcare providers from claims arising from the use of drugs and devices (e.g., ventilators) used during the pandemic to treat patients. See 42 U.S.C. §§ 247d-6d, 247d-6e (2006) (as modified by the PREP Act, 85 C.F.R. § 15198 (2020)).
3. S. 4317, 116 Cong., § 2 (2019-2020) (introduced by Sen. John Cornyn on July 27, 2020).
4. Id. § 3(10), (19).
5. Now Chief Justice of the New Hampshire Supreme Court, McDonald’s opinion would appear to have a stronger chance of becoming “binding.”
6. This example was taken from a real case. See Reardon v. OhioHealth Corp. et al., 20 CV004043 (June 22, 2020) (filed in the Franklin County Court of Common Pleas)
Cory D. N. Greenleaf ’22 At UNH Law, is a Daniel Webster Honors Scholar and Warren B. Rudman Fellow. Before law school, he received his master’s degree in public health from the University of New England.